Company wherein the proceedings of the Company are recorded
shall at all reasonable times be open to the inspection of any
shareholder of the Company, subject nevertheless to the provi-
sions of the deed of settlement or of any bye-laws. By "the
proceedings of the Company," in this section, we understand
the proceedings of any meeting of the shareholders, and not the
proceedings of the directors. Both in common parlance, and
in the Acts of Parliament on this subject, the proceedings at
meetings of the shareholders are considered as the proceedings
of the Company, and they are put in opposition to the pro-
ceedings of the directors, the select body to whom the general
management of the business of the Company is entrusted.
is highly proper that an inspection of the books containing the
proceedings of the directors should be obtained on special occa-
sions and for special purposes: but the business of such Com-
panies could hardly be conducted if any one, by buying a share,
might entitle himself at all times to gain a knowledge of
every commercial transaction in which the directors engage, the
moment that an entry of it is made in their books: and we
cannot *find that any such right of inspection is given. Sect. 98
of stat. 8 & 9 Vict. c. 16, most anxiously requires that entries
shall be made of all the proceedings of the directors and of
all proceedings of the Company; but is silent as to inspection.

It

This Company, in compliance with stat. 7 & 8 Vict. c. 110, s. 33, has, by the deed of settlement, made provision for inspection of the books of the Company. Clause 75 is in these words: "That the books wherein the proceedings of the Company are recorded shall be kept at the principal offices of the Company, and shall be open to the inspection of the shareholders every day of the year, at any time between the hours of eleven in the forenoon and three in the afternoon (except on Sundays and holidays)." But the right of inspection is confined to the book containing the proceedings of the Company: and we know, from the affidavits, that a proposal to extend this general right of inspection to the book containing the proceedings of the directors was rejected as dangerous to the prosperity of the Company. We entirely concur in the observations of Mr. Richardson's counsel on the importance of narrowly watching the proceedings of the directors of Joint-stock Companies, and of affording the means of detecting any misconduct of which they may be guilty. But the proposed daily and hourly inspection and publication of all their proceedings would be tantamount to admitting the presence of strangers at all their meetings, and would probably, ere long, be found very prejudicial to the shareholders. At any rate Mr. Richardson

has been unable to point out any right or obligation on which
this mandamus can rest and his rule must be discharged.
Rule discharged.

WARLOW v. HARRISON (1).

(1 El. & El. 295-308; S. C. 28 L. J. Q. B. 18; 5 Jur. N. S. 313; 7 W. R. 133.)
Declaration alleging that defendant exercised the trade of an
auctioneer, and was employed to sell by public auction divers horses,
and advertized that there would be sold by auction a horse as follows:
that is to say
The property of a gentleman, without reserve, Janet
Pride." That plaintiff attended the sale, and became the highest
bidder, and defendant became and was the agent of the plaintiff,
to complete the contract, on behalf of the plaintiff, for the purchase
of the said mare, but wholly omitted and refused so to do; " whereby
plaintiff was deprived of the benefit of the contract. Pleas: 1. Not
guilty; 2. That plaintiff was not the highest bidder; 3. That defen-
dant did not become plaintiff's agent as aforesaid.

On the trial, it was proved that defendant advertized the sale of the mare, and issued particulars stating it to be “ the property of a gentleman, without reserve." Plaintiff made a bid; the owner of the horse bid higher plaintiff, having found out that the last bidder was the owner, refused to make a further bid; and the defendant knocked the mare down to the owner; but it did not appear that defendant knew that the last bidder was the owner. Plaintiff tendered the amount of his own bid, and required defendant to deliver to him the mare, which defendant refused to do:

Held, by the Court of Exchequer Chamber, affirming the judgment of the Court of Queen's Bench, that defendant was entitled to judgment, the issue on the third plea not having been sustained by plaintiff.. But, by the Court of Exchequer Chamber, the defendant might have been liable to plaintiff on a declaration complaining that the defendant had undertaken to sell the horse without reserve, and had not done so.

THE declaration stated that the defendant exercised and carried on the trade and business of an auctioneer, and was retained and employed to sell and dispose of, by public auction, divers horses that he advertized that the said intended sale by auction would take place on Thursday the 24th day of June, 1858, at No. 1 Cheapside, Birmingham; and that there would be sold by auction (amongst other horses) a certain horse, as follows, that is to say, "the property of a gentleman, without reserve, Janet Pride, a brown mare, without white, five years old, by Iago out of Stormy Petrel; for performances see Racing Calendar." That the plaintiff attended the said sale by auction, and became and was the highest bidder for the said mare so advertized to be sold without reserve; and that the defendant became and was the agent of the plaintiff, to complete the contract, on behalf of the plaintiff, for the *pur

(1) Followed, Johnston V. Boyes [1899] 2 Ch. 73. 68 L. J. Ch. 425, 80 L. T. 488. Distinguished, Harris v. Nickerson (1873) L. R. 8 Q. B. 286, 28 L. T. 410; Rainbow v. Howkins

[1904] 2 K. B. 322, 73 L. J. K. B.
641, 91 L. T. 149. Referred to, Re
Agra, &c. Bank, Ex parte Asiatic
Banking Co. (1867) L. R. 2 Ch. 391,
397, 36 L. J. Ch. 222, 16 L. T. 162.

WARLOW

t.

HARRISON,

[ *297 ]

chase of the said mare, but wholly omitted and refused so to do; whereby the plaintiff was deprived of the benefit of the said contract, and unable to obtain the said mare, as he otherwise would have done, and was put to and incurred divers expenses. And he claimed 150l.

Pleas: 1. Not guilty; 2. That the defendant was not the highest bidder at the said sale as alleged; 3. That the defendant did not become the plaintiff's agent as alleged.

On the trial, before Cockburn, Ch. J., at the last Warwick Assizes, the facts appeared to be as follows.

The plaintiff was a captain in the Royal Artillery; the defendant was a horse dealer and auctioneer carrying on business in partnership with a Mr. Bretherton, under the firm of Bretherton and Harrison, at No. 1 Cheapside, Birmingham, where they have a repository for the sale of horses. In June, 1858, the defendant, as such auctioneer as aforesaid, with his partner, publicly advertized a sale of horses, to take place by auction, at their repository, on Thursday, 24th June, and issued printed particulars of such sale, which, so far as relates to this case, were as follows.

The three following horses, the property of a gentleman, without reserve; in stall 23, Moire Antique; stall 24, Janet Pride, a brown mare without white, five years old, by Iago out of Stormy Petrel; for performances see Racing Calendar; stall 25, Captain Barclay " &c.

In consequence of these advertisements, the plaintiff, on 23rd June, sent his groom and Mr. Stanley, a veterinary surgeon, to the defendant's repository, to examine and report to him respecting the horses so advertized for sale there, who reported the mare as worth probably *from 40l. to 60l.: and, on receiving Mr. Stanley's report of the mare Janet Pride, for which examination and report the plaintiff paid Mr. Stanley his charge of 10s., the plaintiff next day, with one of his friends, attended at the sale by auction, at the defendant's repository; where, after the preceding lots had been disposed of, the mare Janet Pride was put up for sale by the defendant as auctioneer. And, after several biddings made for her, some being made on the part of the plaintiff by a friend of his, the mare went up to 59 guineas: the plaintiff then bid 60 guineas for her; and immediately there was a bid made over him of 61 guineas, by Mr. Henderson, the owner of the mare. The defendant, on the 61 guineas being so bid as aforesaid, nodded to the plaintiff, to see if he would bid any more but the plaintiff, having been then informed that the owner of the mare had made the last bidding of 61 guineas, shook his head and

refused to make any further bid; and the defendant thereupon knocked down the mare to Mr. Henderson, the owner, for 61 guineas, and entered his name as purchaser in the sale book, which had been prepared before the sale, and which contained the names of the horses to be sold at the sale, and the names of the proprietors. The mare was sent back to the stables; and defendant went on selling other lots. The plaintiff went at once into the auctioneer's office. He there saw Mr. Bretherton, defendant's partner, and Henderson the owner, and claimed the mare, as the highest bonâ fide bidder for her, and as she had been advertized in the printed bills for unreserved sale. In the course of the conversation with Mr. Bretherton, Mr. Henderson said: "I bought her in; and you shall not have her; I gave one hundred and thirty pounds *for the mare; and it is not likely I am going to sell her for sixty-three." The same day, plaintiff tendered to the defendant the sum of 63 pounds in sovereigns, as and for the price of the mare, and demanded her; the defendant refused to receive the money or to deliver up the mare to the plaintiff, stating, at the same time, that he had knocked her down to the highest bidder, and he could not interfere in the matter. He also said Henderson was the highest bidder. There was evidence that certain printed conditions of sale were posted about the defendant's repository where the sale took place, and that it was the practice to read them before the sales there. A copy of these conditions, so far as relates to this case, is as follows.

"1. The highest bidder to be the buyer; and, if any dispute arise between two or more bidders before the lot is returned into the stables, the lot so disputed shall be put up again, or the auctioneer may declare the purchaser."

"3. The purchaser, being declared, must immediately give in his name and address, with (if required) a deposit of 5s. in the pound on account of his purchase, and pay the remainder before such lot or lots are delivered."

"8. Any lot order for this sale, and sold by private contract by the owner, or advertized without reserve and bought by the owner, to be liable to the usual commission of 5 per cent."

A verdict was taken for the plaintiff, Damages 5l. 5s.; and leave was given to the plaintiff to amend the declaration if the Court should think fit; and to the defendant leave was given to move as after mentioned.

Mellor, in this Term, obtained a rule to enter a verdict

for defendant, or a nonsuit, on the grounds: First, that no such duty as alleged devolved upon the defendant under the circumstances of the case; secondly, that the defendant was not the agent of the plaintiff to complete the sale, not being bound by any duty or contract so to do; thirdly, that there was no contract with the plaintiff in point of fact which it became the duty of the defendant to complete; fourthly, that, by the bidding of the owner of the horse of a larger sum than that bid by the plaintiff, any authority on the part of the owner to sell the horse to the plaintiff was revoked; fifthly, that it was the duty of the plaintiff, if he disputed the bid of the owner of the horse, to have disputed such bidding pursuant to the conditions upon which the sale was to be conducted. On a former day in this Term (1),

Isaac Spooner and Beasley showed cause :

First, the bidding by the owner of the horse was, in law, fraudulent, and not a bidding at all: a bidding at all: Bexwell v. Chris

* *

Crow

tie (2).
* The plaintiff *was therefore really the highest
bidder.
* If, in the present case, after the owner had
made the bidding, a third party had bid still higher, had been
declared purchaser, and had refused to complete the purchase,
the owner could not have compelled him to do so, the highest
bidding having been produced by the fraudulent bidding of the
owner. That appears from Howard v. Castle (3).
der v. Austin (4) and Wheeler v. Collier (5) are to the same
effect and in Thornett v. Haines (6) the Court of Exchequer
decided that this was the law, at any rate, where more than
one puffer had been employed, or where, as here, the sale is
announced to be without reserve. The principle, that the bid
of a puffer does not prevent the previous highest bidder from
being still the highest, and that the bidding by the puffer
is illegal, and precludes the vendor from insisting on biddings
enhanced by such practice, will be found to have been acted
upon in two Scotch cases, Grey v. Stewart (7) and Anderson
v. Stewart (8). In the last-mentioned case Bexwell v. Christie (2)
and Howard v. Castle (3) were cited. Lord COTTENHAM, L. C.,
in Robinson v. Wall (9), held that a sale, where the highest
bidding was produced by the employment of a party privately

(1) Before Lord Campbell, Ch. J., Wightman and Erle, JJ.

(2) 1 Cowp. 395.

(3) 3 R. R. 296 (6 T. R. 642).
(4) 28 R. R. 646 (3 Bing. 368).
(5) Moo. & Mal. 123.

(6) 71 R. R. 714 (15 M. & W. 367).
Decisions of the Court of Ses-

sion, from the beginning of February, 1752, to the end of the year 1756, p. 130 (7th August, 1758).

(8) Decisions of the First and Second Divisions of the Court of Session, from November, 1814, to November, 1815, p. 108 (December 16. 1814).

(9) 78 R. R. 119 (2 Ph. 372).