1 Edwards v. Hodding, 5 Taunt. 815; Gray v. Gutteridge, 3 C. & P. 40; Spittle v. Lavender, 6 Moore, 270; s. c. 2 Br. & B. 452.

2 Coles v. Trecothick, 9 Ves. 243; Commonwealth v. Harnden, 19 Pick. 482; Ess v. Truscott, 2 M. & W. 385; Combes's Case, 9 Coke, 75; Com. Dig. Attorney (C. 3); Laussatt v. Lippincott, 6 S. & R. 386; Solly v. Rath-bone, 2 M. & S. 298. 3 Coles v. Trecothick, 9 Ves. 243.

4 Commonwealth v. Harnden, 19 Pick. 482. 5 Ibid.

6 But see Scott v. Mann, 36 Tex. 157 (1872).

7 Barker v. Marine Ins. Co., 2 Mason, 369; Church v. Marine Ins. Co., 1 Mason, 341; Copeland v. Mercantile Ins. Co., 6 Pick. 204; Wright v.. Dannah, 2 Camp. 203; Gillett v. Peppercorne, 3 Beav. 78; Story on Agency, § 13, 108; Downes v. Grazebrook., 3 Meriv. 200.

8 See Mainprice o. Westley, 6 B. & S. 420 (1865).

§ 413. Where, in a sale by auction, a deposit of money is made by the vendee in the hands of the auctioneer, we have seen that his duty is to retain it until the sale is complete, and it is ascertained to whom it belongs. Until the sale is completed, he is the stake-holder of both parties, and is liable therefor.6 If, therefore, he pay it over to the vendor before the contract is completed, although he receive no notice from the vendee not to do so, and although he have acted entirely bond fide, yet, if the sale be annulled on account of the vendor's defect of title, he will be liable to the vendee for the deposit, in an action for money had and received.6 But he is not, in such case, liable for interest thereon, unless the money be demanded, or notice be given that the contract has been rescinded;7 or perhaps, unless it be proved that he made interest thereon.1 If the auctioneer receive money as a deposit on the sale, knowing that there is a defect in the title, he would, a fortiori, be liable therefor, although he had paid it over to the vendor.2 But where an action is brought against the auctioneer for the deposit, he cannot recover the costs thereof from the principal, in an action for money had and received, but must declare specially.3

1 Post, § 342 to 346, and cases cited. See also Brown v. Staton, 2 Chitt. 353; Nelson v. Aldridge, 2 Stark. 435; Denew v. Daverell, 3 Camp. 451.

2 It seems that if the auctioneer advertises a sale without reserve, and does not disclose the name of his principal, he personally contracts for a sale without reserve, and is liable in damages for a breach, at the hands of the purchaser. Mainprice v. Westley, 6 B. & S. 420 (1865); Warlow v. Harrison, 1 El. & El. 295 (1858).

3 Hanson v. Roberdeau, Peake, 120; Mills v. Hunt, 20 Wend. 431; Franklyn v. Lamond, 4 C. B. 637.

4 Hicks v. Minturn, 19 Wend. 550.

5 Edwards v. Hodding, 5 Taunt. 815; Hanson v. Roberdeau, Peake, 120; Gray v. Gutteridge, 3 C. & P. 40; Burrough v. Skinner, 5 Burr. 2639.

6 Gray v. Gutteridge, 3 C. & P. 40.

7 Gaby v. Driver, 2 Y. & J. 549; Lee v. Munn, 1 Moore, 481; s. c. 8 Taunt. 45; Calton v. Bragg, 15 East, 223.

§ 414. Again, if the auctioneer be guilty of negligence, and omit to take proper precautions to secure his commissions, or auction duty, he cannot recover them from the vendor or vendee.4 As where the auctioneer sold the goods of A. and B. together, as the goods of A., and C. became the purchaser of some of A.'s goods, and through negligence in not giving C. notice that they belonged to A., C. settled with A. for the price, it was held, that the auctioneer could not recover the price from the buyer.5 And it was also held, that, in such a case, if the auctioneer bring an action against the buyer for the price of the goods, the buyer might set off a debt due from A. to him.6

§ 415. So, also, if the auctioneer, in selling the goods, undertake to warrant them to be of a certain quality or species, without disclosing the name of the principal, he will be personally liable thereon, whether he were possessed of authority or not. Although, if he have not exceeded the limits of his authority, he will have an action over against his principal. But if he disclose the name of his principal, and make a warranty within the limits of his authority, he will not be personally liable for breach thereof.7

1 Curling v. Shuttleworth, 6 Bing. 121.

2 Edwards v. Hodding, 5 Taunt. 815.

3 Spurrier v. Elderton, 5 Esp. 1.

4 Denew v. Daverell, 3 Camp. 451; Capp v. Topham, 6 East, 392; Jones v. Nanney, 13 Price, 76; Hicks v. Minturn, 19 Wend. 550.

5 Coppin v. Walker, 7 Taunt. 237.

6 Coppin v. Craig, 7 Taunt. 243.

7 Hanson v. Roberdeau, Peake, 120; Fenn v. Harrison, 3 T. R. 761; Catlin v. Bell, 4 Camp. 184; Prince v. Clark, 1 B. & C. 186. There seems to be some doubt whether an auctioneer has, in virtue of his office, a right to warrant without special authority. See The Monte Allegre, 9 Wheat. 645; Blood v. French, 9 Gray, 197. But see Gunnis v. Erhart, 1 H. Bl. 289; Howard v. Braithwaite, 1 Ves. & B. 209, 210; Powell v. Edmunds, 12 East, 6.

§ 416. Again, if the auctioneer be guilty of fraud, or deceit, or assume the responsibility of selling disputed goods, he will render himself personally liable to the party defrauded. If, therefore, he have notice that the goods which he is about to sell do not belong rightfully to his employer, - or that the title to them is a matter of dispute, - and he, nevertheless, proceed to sell them, he will be personally responsible.1 But if he be deceived himself, and be ignorant that his employer has not an undisputed title to the goods, although he will, in the first instance, be responsible to the true owner, yet he will have his remedy against his employer.2 But in cases where he connives with the vendor to defraud the buyer, he has no remedy against his confederate for damages recovered against him by the party defrauded.3 As it is the fraud which prevents him from recovering, the rule would not apply to a case where he was employed to act merely for the purpose of trying or asserting a right; or where he was deceived into a belief in the goodness of the vendor's title.4 But if the auctioneer make material misrepresentations, and the purchaser be thereby influenced to buy, he is responsible to the purchaser.5