1897 BELL V. BALLS. land the auctioneer is authorized by the purchaser to sign a STIRLING J. memorandum of the contract, is Emmerson v. Heelis. (1) There the auctioneer signed by entering the purchaser's name opposite a particular lot in a specially prepared catalogue. Mansfield C.J. says: “This memorandum is more particular than most memorandums of sale are; and upon it the auctioneer writes down the purchaser's name. By what authority does he write down the purchaser's name? By the authority of the purchaser. These persons bid, and announce their biddings, loudly and particularly enough to be heard by the auctioneer. For what purpose do they do this? That he may write down their names opposite to the lots; therefore he writes the name by the authority of the purchaser, and he is an agent for the purchaser." In Earl of Glengal v. Barnard (2) Lord Langdale M.R. (3) thus explains the ground of his decision: "The nature of the proceeding by auction-the bidding for the purpose of making the purchase the necessity of making a statement of the bidding-the direction to the auctioneer to write down the bidding, which is perhaps involved in the very process of bidding, and some other circumstances afford intelligible ground for the decision in Emmerson v. Heelis (1) and the approbation which has since been bestowed upon it." These cases appear to shew that the authority which the purchaser confers upon the auctioneer is to write down the bidding—that is, to make a minute or record of it at the time and as part of the transaction, and such a record is held a memorandum sufficient to satisfy the statute. I do not see that the nature of the proceeding justifies the implication of an authority to make a memorandum, except at a time when the writing down can fairly be held to be a part of the sale. If the auctioneer were allowed to record the bidding at a later time evils might arise similar to those which the Statute of Frauds was intended to prevent. Such authority as there is appears to me to favour this view. I am not sure how far the case of Mews v. Carr (4) can really be so regarded, for though the learned judges speak of the (1) 2 Taunt. 38, 47. (2) (1836) 1 Keen, 769. (3) 1 Keen, 788. 1897 BELL v. BALLS. STIRLING J. auctioneer ceasing to be agent for the purchaser "so soon as the sale is over," their remarks were directed to the case of a sale made through the auctioneer not at the auction but several days afterwards. The point, however, was raised in Buckmaster v. Harrop. (1) There the auctioneer was one of the vendors, and apparently did not make his entry of the bidding at the time of the sale, and objection was taken on that account. Lord Erskine L.C. thus deals with it: "The only evidence, that I can receive, is the written memorandum itself, unless it is lost; and it must be a cotemporary memorandum, especially in this case: as the auctioneer, being himself the vendor, though only as a trustee, could not in strictness be the agent of the purchaser." By a cotemporary memorandum I understand one made at the time and as part of the transaction of sale. If in the present case the auctioneer had proceeded to sign a memorandum immediately on the conclusion of the auction I should have been slow to hold that to be beyond his power; but I think that the memorandum of December 2, 1895, was signed at a time when the auctioneer's authority had ceased. It becomes unnecessary, therefore, to consider the question whether the purchaser could revoke the authority conferred by him on the auctioneer. I content myself with saying that I share with Lord Romilly his reluctance to hold that upon a sale by auction under ordinary circumstances the vendor or the purchaser can say after a lot has been knocked down, "I am not satisfied with the price and withdraw the authority given to the auctioneer": see Day v. Wells. (2) The result, therefore, is that the action fails, and must be dismissed with costs. Solicitors: Beaumont, Son & Rigden; Charles Butcher. (1) (1807) 13 Ves. 456, 473. (2) 30 Beav. 220. In re BENTINCK. BENTINCK v. BENTINCK. [1891 B. 1832.] Administration of Assets-Insolvent Estate-Specialty and Simple Contract A testator died insolvent after 1870 owing specialty and simple contract debts, including a simple contract debt to the Crown. The assets were more than sufficient for payment of the Crown debt after satisfying the specialty debts: Held, having regard to 32 & 33 Vict. c. 46, that the assets ought first to be apportioned rateably between the specialty and simple contract debts, and that the Crown debt ought then to be taken out of the amount apportioned to the simple contract debts. The principle of Wilson v. Coxwell, (1883) 23 Ch. D. 764; In re Jones, (1885) 31 Ch. D. 440, and In re Briggs, W. N. (1894) 162, applied. In re Williams' Estate, (1872) L. R. 15 Eq. 270, distinguished. IN 1891 the testator in the action died insolvent, and this action was brought for the administration of his estate. The particulars of the several classes of claims against the estate of the deceased were as follows: Simple contract debts, 253,0397. 12s. 10d. Specialty debts, 17,980l. 7s. 3d. Crown claims for unpaid probate and residuary estate duty under the will of Lord Henry Bentinck, of which the deceased was the sole proving executor and residuary legatee, 37331. 16s. These claims were made up as follows: Additional probate duty (payable under 55 Geo. 3, c. 184), 15007.; residuary estate duty (payable under 36 Geo. 3, c. 52), 22331. 16s. The assets of the deceased were, approximately, 114,0007. The claims of the Crown were paid out of the estate of the deceased (before any of the other claims were satisfied) under an order of the Court made in the action dated April 29, 1895. A summons was now taken out in the action by two specialty creditors of the deceased to have it determined how, as between VOL. I. 1897. 3 B 1 STIRLINGJ. 1897 March 13, 17. 1897 In re BENTINCK. BENTINCK 27. BENTINCK. STIRLING J. the specialty and simple contract creditors, these payments were to be borne. This question turned upon the provisions of Hinde Palmer's Act (32 & 33 Vict. c. 46), which is intituled "An Act to abolish the distinction as to priority of payment which now exists between the specialty and simple contract debts of deceased persons.' At the hearing of the summons it was conceded that the additional probate duty could not be regarded as a debt due from the deceased, and that the payment of the 1500l. ought to be treated as a preferential payment properly made by leave of the Court for the benefit of the estate. The application was therefore confined to the sum of 22331. 16s. paid for the residuary estate duty. Hastings, Q.C., and Davenport, for the summons. The effect of 36 Geo. 3, c. 52, s. 6, is to make the Crown a simple contract creditor in respect of this residuary estate duty. Apart from Hinde Palmer's Act, the Crown would be entitled to priority over other simple contract creditors, but not over specialty creditors, and the Crown is not affected by that Act because not specially mentioned therein: In re Henley & Co. (1) There being assets sufficient to pay this Crown debt in full after satisfying the specialty creditors, the proper course, having regard to Hinde Palmer's Act, is to apportion the assets rateably between the specialty and simple contract creditors, and then take the Crown debt out of the amount apportioned to the simple contract creditors. That is the course which has been adopted in several cases where an executor has claimed to exercise his right of retainer in respect of a simple contract debt: Wilson v. Coxwell (2); In re Jones (3); In re Briggs. (4) The executor, like the Crown, gets his priority by reason of his peculiar position, and the right of retainer is in substance a right to preferential payment. The analogy, therefore, between the two cases is complete. It is said that the result is to give the specialty creditors a priority over the simple contract creditors, and that that is inconsistent with the object of the statute. But it is a fallacy to say that the statute abolishes the distinc (1) (1878) 9 Ch. D. 469. (3) 31 Ch. D. 440. 1897 In re BENTINCK. tion between specialty and simple contract debts. The statute STIRLINGJ. merely says that no debt of a deceased person shall be entitled to priority of payment by reason of its being a specialty debt. But here the statute is obeyed before the priority comes in, and the accidental priority accruing to the specialty creditors arises from the peculiar position of the Crown. Buckley, Q.C., and T. T. Methold, for simple contract creditors. By Hinde Palmer's Act, for the purposes of payment, the distinction between specialty and simple contract creditors is abolished. The statute depresses the specialty creditor to the level of the simple contract creditor. The effect of that is to give the Crown priority over the specialty creditors, and, therefore, the Crown debt ought first to be deducted and the balance divided rateably between the two classes of creditors. This case is analogous to In re Williams' Estate (1), where a simple contract creditor of a deceased person obtained judgment against the personal representative of the deceased, the effect of which was, apart from the statute, to give him priority over the other creditors of the deceased of the same degree, and it was held that the indirect result of the statute was to give him priority over the specialty creditors. Further, the effect of the Intestates Estate Act, 1884 (47 & 48 Vict. c. 71), s. 3, is to take away the priority of the Crown. Notwithstanding the title of that Act, s. 3 applies to all estates of deceased persons. [STIRLING J. I do not think that that section was intended to take away the priority of the Crown.] Cunliffe, for the executors.. Hastings, Q.C., in reply. In re Williams' Estate (1) is distinguished by Kay J. in In re Jones (2), and it is based upon a mistaken view of the Act. Cur. adv. vult. March 17. STIRLING J., after stating the facts and referring to Hinde Palmer's Act, continued :-The question is, How is the payment of the Crown debt to be borne as between the specialty and simple contract creditors of the deceased, regard being had (2) 31 Ch. D. 440. (1) L. R. 15 Eq. 270. BENTINCK V. BENTINCK. |