M'Kellar and Graham, for the plaintiff, the appellant. The defendant had no authority to pay the arrears of rent to the landford. It must be remembered that no distress had been really made, there was simply a threat by Sidney that he would distrain. The defendant was a bailee, to whom the goods were delivered for a particular purpose; that is to say, he was to sell them, and keep the proceeds until he received a joint order from the two attorneys, signifying what he should do with them. He had no right to apply those proceeds to any other purpose. County Court judge seems to have acted upon the case of Biddle v. Bond (1). [BLACKBURN, J.-This is not a case of jus tertii at all.]

The

The question is whether the defendant was justified in paying the rent, as against the persons who employed him as auctioneer.

[LUSH, J.-Suppose the purchasers of the respective lots had tendered the money as soon as the hammer fell, and had demanded the goods which had been knocked down to them, what right would the defendant have had to refuse to deliver them?]

None; the property in each lot of goods passed. In Benjamin on the Sale of Personal Property, p. 102, it is said: "But where, at an auction, the same person buys several successive lots as they are offered, a distinct contract arises for each lot, and the decision to this effect in Emmerson v. Heelis (2) was not questioned in Baldey v. Parker" (3). At p. 218, the learned author refers to the judgment of Bayley, J., in Simmons v. Swift (4), and to that of Parke, J., in Dixon v. Yates (5), where he said, "I take it to be clear that by the law of England the sale of a specific chattel passes the property in it to the vendee without delivery. when by the contract itself, the vendor appropriates to the vendee a specific chattel, and the latter thereby agrees to take that specific

(1) 6 B. & S. 225; s. c. 34 Law J. Rep. (N.S.)

Q.B. 137.

(2) 2 Taunt. 38.

(3) 2 B. & C. 37.

(4) 5 B. & C. 862.

(5) 2 Ad. & E. 318, 340; s. c. 2 Law J. Rep. (N.s.) K.B. 202.

chattel, and to pay the stipulated price, the parties are then in the same position as they would be after a delivery of goods in pursuance of a general contract." Mr. Benjamin then says, "The principles so clearly stated by those two eminent judges are the undoubted law at the present time."

Kemplay, for the defendant.-If the landlord had seized the goods the value of the proceeds of the sale would have been lessened. The goods were liable to be seized for the rent due at the time when they were handed over to the defendant. He was bound. to free them from that liability when he received notice that they would be seized. That is a duty incident to his employment as auctioneer. ther, the stipulation in the condition of sale that the auctioneer shall not be called upon for compensation for any injury or loss sustained after the goods had been knocked down only refers to injury or loss by fire, or something of that sort. An auctioneer is only liable to pay over the amount realised at the sale.

Graham replied.

Fur

BLACKBURN, J.-I think that when the point is understood, the answer to the question put to us in the Case stated turns out to be pretty clear, although I am not at all inclined to be surprised at the view which was taken by the County Court Judge. The authorities shew that when, upon a sale of goods, the bargain. has been completed, and all is done that the vendor is called upon to do, the property vests in the purchaser. When that has happened, if any loss or calamity occur to the goods, the loss is that of the purchaser not of the vendor. By parity of reasoning, if any benefit accrue to the goods, the purchaser gets the advantage of the increase in their value. We find in the present case that the defendant was instructed to sell the goods under conditions of sale, by one of which it was provided that "Each lot shall be paid for immediately after the sale, and previously to its removal. Each and all lots shall be taken to be delivered at the fall of the hammer; after which time they shall remain and be at the exclusive risk of the purchasers, and the auctioneer shall not

be called upon for compensation for any injury or loss sustained after that time.' The case, therefore, is very like Hinde v. Whitehouse (6), where a quantity of sugar was sold at an auction on the 20th of September, and was consumed by fire upon the 22nd of the same month, before it had been removed by the buyer. Lord Ellenborough, C.J., held that the risk of loss was thrown upon the buyer.

It is true that this is not the case of a loss by fire, and it is contended on behalf of the defendant that the condition of sale only applies to a loss or injury by fire, or by some event of the like nature. It is not the case of an actual distress by the landlord, but after the sale was over, Mr. Sidney, the agent of the landlord, threatened that he would distrain unless the arrears of rent were paid. The defendant seems to have thought that, if the goods were distrained, the loss would fall upon his employers, and that he was entitled to pay the rent out of the proceeds of the sale; he therefore promised to pay it, and Sidney was satisfied. If the threat had been carried out by Sidney, the loss would not have fallen upon the defendant's employers, but upon the purchasers. It was, therefore, not necessary for the interest of the former that the rent should be paid, and the plaintiff is entitled to recover from the defendant the money which he has thus paid.

MELLOR, J.-I am of the same opinion. It seems to me that the defendant misapprehended the position in which he was placed at the time he promised Sidney that he would pay the rent. At that time the goods had been sold, and the promise which he made was in relief of the purchasers. I think, therefore, that he must be liable in this action, though I come to that conclusion with regret, as I think that he was but little to blame.

LUSH, J.-I am of the same opinion. The question is whether the defendant had authority to make this payment on account of the arrears of rent at the time he made it. It is certain that he had no express authority, but the contrary; nor can any be implied. The sale was over, and the property had passed to the purchasers. There

(6) 7 East, 558.

was nothing for the defendant to do further than to hand over the goods. It cannot be considered that he became the agent of his employers by necessity, to make the promise to pay the rent.

Judgment for the appellant.

Attorneys E. Sweeting, for appellant; H. C. Cobbold, for respondent.

[IN THE EXCHEQUER CHAMBER.] 1871. HANNAFORD AND ANOTHER v. Dec. 11. J HANNAFORD AND ANOTHER. Will; Construction of-Cross Remainders.

J. H. by his will devised his estate to his brother, W. H., and "After his decease, I give and devise the same unto his four sons, William, George, Peter, and Thomas Pitts Hannaford, my nephews, for their respective natural lives, as tenants in common, and not as joint tenants; and after the several and respective deceases of my said nephews, then I give and devise the share or shares of them, my said nephews respectively, unto their respective eldest sons now living, for and during their respective natural lives; and after the several deceases of such eldest sons, I give and devise the same share or shares unto the first son of the body of such eldest sons of my said respective nephews, and the heirs male of the body of such first sons lawfully issuing; and, in default of such issue male of the first sons of the body of the eldest sons of my said nephews respectively, then I devise the aforesaid share or shares unto the said second, third, and all and every other son and sons of the body of the respective eldest sons of my said respective nephews, severally and successively, according to their respective seniorities, and the heirs male of the body of such second, third, and all and every other sons of such eldest sons respectively lawfully issuing. And, for default of such issue, I give and devise the same share or shares unto the second and third, and all and every other son and sons now living of my said respective nephews, severally and successively, according to their respective seniorities; and unto the son and sons of

such second and third, and other sons of my said respective nephews, in the same manner, and for the same estate and estates, as I have hereinbefore given the same to the eldest sons of my said respective nephews and their sons. And, for default of such issue, I give and devise the same unto all and every the son and sons hereafter to be born of my said respective nephews, severally and successively, according to their respective seniorities, and their heirs in tail male. And, for default of such issue, I give and devise the same to my own right heirs for ever, it being my will and intention that the said lands shall go and remain in my name and family for ever, or as long as the law will permit such enjoyment of the same:”—Held, that the effect of the limitations of the will was to create by implica tion cross remainders between the devisees and their respective heirs, and that therefore two of the testator's nephews having died without leaving male issue, the male heirs of the two other nephews were entitled as tenants in common to the shares of the two first above-mentioned nephews.

In an action brought by the plaintiff's to establish their right to certain land, the following Case was stated for the opinion of the Court, without any pleadings, by order of Blackburn, J., and under the Common Law Procedure Act, 1852.

CASE.

"1. John Hannaford, late of Abbotskerswell, in the county of Devon, deceased, by his will, dated the 20th day of February, A.D. 1830, and duly executed and attested, as by law then required for the devise of real estate, gave and devised certain freehold property (in respect of which the dispute herein mentioned arises) in the manner in the said will mentioned.

"2. A copy of the will is annexed.

"3. The testator died seised in fee of the aforesaid premises on the 11th day of February, 1833, leaving him surviving, his brother, William Hannaford, the four nephews in the said will mentioned, William Field, the son of the nephew William Hannaford, William Pitts, son of the nephew Peter Hannaford, and Thomas Field and John Pitts, sons of the nephew Thomas Pitts Hannaford.

"4. William Hannaford, the brother of the said testator, held the premises during his lifetime, and died on the 30th day of March, A.D. 1838, leaving his said sons, the said four nephews of the testator, him surviving. William Hannaford, the eldest of the said four nephews of the testator, died 18th of May, 1844, never having had more than one son, namely, the said William Field Hannaford, and four daughters, three of whom survived their father. William Field Hannaford, the son of the said William Hannaford, married, and died 2nd of December, 1863, without ever having had any children. His three surviving sisters, Ann Field Hannaford, Elizabeth Pitts Guy (formerly Elizabeth Pitts Hannaford), and Mary Grace Hannaford, are the plaintiffs, and claim the shares in dispute, as co-heiressesat-law of the testator, John Hannaford.

"5. George Hannaford, the second of the four nephews of the testator, died on the 8th of August, 1868, never having had any issue.

"6. Peter Hannaford, the third, and Thomas Pitts Hannaford, the fourth of the said nephews of the said testator, have both been dead some time, each leaving a son or sons. Henry Hannaford is the only surviving son of Peter Hannaford, the testator's nephew, William Pitts, the other and elder son, having gone to sea, and not having been heard of for eleven years, and never having been married. Thomas Pitts Hannaford, the fourth nephew mentioned in the said will, left two sons surviving him, the eldest being Thomas Field Hannaford, who died, leaving a son, Norman Field Hannaford. The said Henry Hannaford and Norman Field Hannaford are the defendants in this action; the defendant, Norman Field Hannaford, is defended by his guardian.

7. The plaintiffs have never been in the possession of the lands and premises; the same are let out and in the occupation of tenants, who hold the entirety; and as it is not desired to disturb the possession of such tenants, the parties have agreed to try the question of their respective rights in this action, and to deal with the rents paid by such tenants in conformity with the judgment of the Court on the question of the right.

On the death of George Hannaford, 1868, the second nephew mentioned in the said will, without issue, the plaintiffs, as heiresses-at-law of John Hannaford, the testator, claimed to be entitled to his share of the aforesaid premises so devised to him for life. And upon the death of their brother, the said William Field Hannaford, in 1863, the son of Willliam Hannaford, the first of the said nephews mentioned in the said will, the plaintiff's also claimed to be entitled as such heiresses to their brother's share. The defendants, on the other hand, claim both the said shares. This action is therefore brought to determine the right to such shares.

The question for the opinion of the Court is whether the plaintiffs are entitled, under the circumstances aforesaid, to the shares so claimed by them or either of them.

If the Court should be of opinion in the affirmative, as to both the said shares, then judgment is to be entered for the plaintiffs accordingly, with costs of suit.

If the Court shall be of opinion that the plaintiffs are entitled to recover only one of such shares, then judgment shall be entered for the plaintiffs for that share, accordingly, with costs of suit, and judg ment shall be entered for the defendants for the other of such shares, with costs of defence applicable thereto. But if the Court shall be of opinion that the plaintiffs are not entitled to recover either of the said shares, then judgment is to be entered for the defendants, with costs of suit.

It is agreed there shall be no appeal, and that the decision of the Court of Queen's Bench shall be final and conclusive.

The will was set out in a schedule. The material part was as follows: "This is the last will and testament of me, John Hannaford, of Abbotskerswell, in the county of Devon, gentleman, made and published the 20th day of February, 1830. In the first place, I give and devise all my messuages, lands, and hereditaments, situate and lying in the parish of Abbotskerswell aforesaid, or elsewhere, except my field or closes called Mill and Milkway, late Martin's, unto my brother, William Hannaford, he and they not

doing or committing any waste or damage thereon, and after his decease I give and devise the same unto his four sons, William, George, Peter, and Thomas Pitts Hannaford, my nephews, for their respective natural lives, as tenants in common and not as joint tenants, subject to impeachment for waste, and after the several and respective deceases of my said nephews, then I give and devise the share or shares of them my said nephews, respectively, unto their respective eldest sons now living, for and during their respective natural lives, and after the several deceases of such eldest sons, I give and devise the same share or shares unto the first son of the body of such eldest sons of my said respective nephews, and the heirs male of the body of such first sons lawfully issuing. And in default of such issue male of the first sons of the body of the eldest sons of my said nephews respectively, then I devise the aforesaid share or shares unto the said second, third, and all and every other sou and sons of the body of the respective eldest sons of my said respective nephews severally and successively, according to their respective seniorities, and the heirs male of the body of such second, third, and all and every other sons of such eldest sons respectively lawfully issuing. And, for default of such issue, I give and devise the same share or shares unto the second and third and all and every other son and sons now living of my said respective nephews, severally and successively, according to their respective seniorities, and unto the son and sons of such second and third and other sons of my said respective nephews, in the same manner and for the same estate and estates as I have herein before given the same to the eldest sons of my said respective nephews, and their sons. And, for default of such issue, I give and devise the same unto all and every the son and sons hereafter to be born of my said respective nephews, severally and successively, according to their respective seniorities, and their heirs in tail mail, and, for default of such issue, I give and devise the same to my own right heirs for ever, it being my will and intention that the said lands shall go and remain in