As no case has been cited in favour of the plaintiffs, we must be guided by good sense, and the reason of the case; and, therefore, I think the motion ought to be refused, with costs. Motion refused, with costs. 1824. The GOVERN ORs of LUCTON Free School v. T. SMITH and others. JONES V. NANNEY, Clerk. THIS was a special action of assumpsit. The first count stated, that the plaintiff on, &c. at Llanwrst, in the county of Denbigh, as auctioneer, put up for sale by way of auction a certain messuage, &c. subject to the following, among other conditions of sale, of which the defendant had notice. 1st. "That the vendors, having caused a notice to be delivered to the auctioneer, authorizing Mr. Henry Rumsey Williams to bid for the premises mentioned in a certain particular, the same should not be considered as sold, unless the price bid by any other person or persons for the same, should exceed the sum bid by the said H. R. Williams." 1824. February 3d. A.an auctioneer was employed to sell certain lands, &c. sub- tions of sale. vendors having caused a notice to be delivered to the auc tioneer, authorizing one H. R. premises mentain particular, (pursuant to stats. 19 G.3.c. 56. s. 12. and tioned in a cer 3d. "That no person should advance less at any 20 G. 3. c. 37. s. 20.) the same should not be considered as sold, unless the price bid by any other person or persons for the same should exceed the sum bid by the said H. R. W." 2. "That the purchaser of each lot should pay to the auctioneer, the duty granted to his Majesty on the sale of real estates, over and above the purchase money for each lot." The conditions were read by A. in the hearing of B., a bidder at the auction. B. bid 4000!. for a certain lot, which bidding was then taken down by A. in his catalogue, without adding the name of B. A. postponed the sale and went to other lots, saying aloud, he did so " to give gentlemen time to consider." In less than an hour, A. declared, in B.'s hearing, that he was going back to the lot, and to B.'s bidding, "that it was an open sale as to the same lot, and that he would give two minutes time to consider; and unless there was an advance he would knock it down to B. at 4000." B. then said, but not so loud as to be heard by A., that he would not have it. There being no advance, the lot was knocked down to B.; who thereupon refused to complete the purchase, or to sign a memorandum in writing to bind himself as purchaser, under the statute of frauds. H. R. W. had made no bidding for the lot.-Held, that A. could not maintain assumpsit to recover the auction duty upon the sale of the lot, which he had paid to the crown, against B. as purchaser, or as highest bidder, or as a higher bidder than H. R. W. according to the conditions of sale. Semble, that the auction duty did attach on the imperfect sale, and that if A. had written down the name of B. in his particular, the contract of sale would have been binding under the statute of frauds; and that A. might recover the duty against the vendor, who would have a right to recover it over against B. 1824. JONES v. NANNEY, bidding, than the sum mentioned by the auctioneer on putting up the premises; nor should any person retract his or her bidding, after it had been taken down and declared by the auctioneer." 4th. "That the purchaser of each lot should pay to the auctioneer the duty granted to his Majesty on the sale of real estates, over and above the purchase money for each lot." 5th. "That the purchaser should, immediately after the sale, pay a deposit of 101. per cent. in part of the purchase money; and if required, enter into articles of agreement with the vendors for payment of the remainder.”It went on to state that the defendant was the highest bidder for, and then and there became, and was in due manner the purchaser of the said messuage, &c. ;-that the plaintiff and defendant mutually promised to perform all things in the conditions of sale ;-but that "although the said plaintiff was, &c., yet the same defendant hath not performed or fulfilled the said conditions of sale, in any thing on his part and behalf to be performed and fulfilled, and afterwards, &c. gave notice to the said plaintiff, that he would not perform or fulfil the same;" by reason whereof, the plaintiff was called upon, and obliged to pay the auction duty on account of the said sale. The second count stated, that the defendant was the highest bidder for a certain other messuage, &c.; and that the sum bid by him, exceeded any sum bid for it by Mr. H. R. Williams; "that the same was then and there taken down, and declared by the said plaintiff, as such auctioneer as aforesaid; and that he the said plaintiff, then and there knocked down the hammer, and closed the bidding with respect to the said last mentioned messuage," &c. ;-that the defendant refused to perform the conditions of sale, and did afterwards, and after such bidding was closed, "retract his said bidding," and wholly refuse to satisfy and confirm the sale. There were three other special counts, in which it was averred, that the sum bid by the defendant for the messuage, exceeded any sum bid for it by H. R. Williams, and the undertaking was laid in other and different ways, with corresponding breaches. The fourth also alleged a promise to indemnify. The declaration also contained four common money counts. The defendant pleaded the general issue. On the trial of the cause, at the summer assizes of 1822, for the county of Salop, a verdict was found for the plaintiff, with 1167. 13s. 4d. damages, subject to the opinion of the Court upon the following case. The plaintiff is an auctioneer, duly licensed; and on the 8th day of August, 1821, by the orders of the owners thereof, put up to sale by auction, in different lots, certain lands and premises, subject to the conditions set forth in the first count of the declaration; which auction was attended by the above named defendant, and the conditions were read by the plaintiff in the hearing of the defendant. Lots one and three, being parcel of the aforesaid premises, were put up for sale in one lot; and several biddings were made for the same by the defendant and other persons, until the defendant bid 4,000l.; and such bidding was then taken down (a) by the plaintiff. The said lots were not then knocked down. The plaintiff put them off for a time, and went to other lots: plaintiff said he put them off for a while to give gentlemen time to consider. This was said aloud in the defendant's hearing. In less than an hour, the plaintiff declared in the hearing of the defendant, that he was then going back to lots one and three, and to defendant's bidding of 4,000l. ;—that it was an open sale as to the same lot; and that he would give two minutes time to consider; and unless there was an advance he would knock it down to defendant at (a) In the argument of the case this day, it was assumed that the name of the bidder was not put down. .1824. JONES v. NANNEY, 4,000l. The defendant then said, but not so loud as to be heard by the plaintiff, that he would not have it. There being no advance on that bidding, the plaintiff knocked down the lots to the defendant. The plaintiff then took up a glass of wine, and addressing the defendant, said, I drink your health, and wish you joy. The defendant said, you need not wish me joy; I will not have it, unless the law compels me. The defendant has refused to complete his purchase, or sign any memorandum or agreement in writing, to bind himself as purchaser, according to the statute of frauds. The plaintiff, on the 11th May following, paid to the collector of excise duties of the district, the sum of 1167. 13s. 4d., as and for the auction duty upon the said sale of the said lots one and three. M. R. Williams made no bidding for the said lots. The question for the consideration of the Court is, whether the plaintiff is entitled to recover in this action from the defendant, the amount of the auction duty so paid by him. If the Court should be of opinion he is so entitled, the verdict is to stand; but if the Court should be of a contrary opinion, a nonsuit is to be entered. The case was argued in two preceding terms, by Richards, R. V. for the plaintiff, and Campbell for the defendant. It was this day argued finally, at considerable length, by Taunton, W. P. and Jervis. Taunton, for the plaintiff, made two points. 1. That under the circumstances, the auction duty was payable by the plaintiff. 2. Assuming this, that the defendant was under a legal obligation of reimbursing the Plaintiff. 1. That the payment made by the plaintiff was one which he was under a legal liability to make, and not in his own wrong, appears from the language of the stat. 19 G. 3, c. 56, s. 6, "the said respective rates and duties, &c. shall be, and are hereby declared to be, a charge upon every auctioncer, &c. immediately from, and after the knocking down of the hammer, or other closing of the bidding, at every sale by way of auction, and the rates and duties so charged shall be paid by every such auctioneer, &c. in manner, and at the times thereinafter mentioned." The 7th section authorises the auctioneer to retain the duty out of the produce of the sale, or the deposit made, or to recover it by action of debt, or on the case, against the person or persons by whom he shall be employed. [HULLOCK, Baron. I see that by the fourth condition of sale, the purchaser undertakes to pay the auction duty, therefore you will find it necessary to shew that this gentlemen was a purchaser.] I am now proposing to shew that the duty did attach. There was an auction proceeded on in the common form; the defendant was the highest bidder for a certain lot; the lot was knocked down to him, and the biddings were closed. When the case was argued before, great reliance was placed by defendant's counsel on the words of the act "at every sale by way of auction ;" and it was contended, that it was not sufficient there should be an attempt at a sale, but that the sale must be perfect and complete, to make the duty attach. Whatever doubt might exist on the construction of the statute in this respect, it has been set at rest by the decision of the House of Lords, in The Attorney General v. Christie (a). That was an information filed by the Attorney General in this Court for the duties on divers estates put up to sale by auction, and bought in on behalf of the owners, the auctioneer not having complied with the terms of the stat. 28 G. 3, c. 37, s. 20, which requires notice of the person appointed to bid on behalf of the owner, to be given to the auctioneer previous to the bidding. This Court decided that no allowance of the duty ought to be made to the defendant; against which decision he appealed: but the (a) 6 Brown's Cases in Parliament, 520, 2d ed. 1824. JONES v. NANNEY, Clerk. |