an enemy on a ransom bill might be maintained, the "action was not brought until peace was restored, which "gets rid of the objection."

Where, however, such a contract has been entered into before the war, it seems, that the right of enforcing it is merely suspended during the continuance of hostilities, and that, peace being restored, the original capacity will revive.

And as we have seen already, the King's licence is often granted for the purpose of making contracts with alien enemies valid and legal.

Contracts concerning Auctioneers.

In cases of deposit, the auctioneer is a mere stakeholder, and he is not justified in parting with the money confided to him until the sale is finished and complete. If he do, he will be liable to an action at the suit of the buyer, should there be sufficient reason for refusing to pay the remainder of the purchase-money; and whether he have paid over the deposit to the principal or not, he will be equally responsible.

In a subsequent case, where the auctioneer was attorney for the vendors of an estate, and he had paid over the deposit to his principals, it was holden, that he had paid the money over in his own wrong; 1. Because he must have known that the title was disputable in the view the purchaser had of it, which was equivalent to express notice not to pay it over. 2. Because by not communicating to the plaintiff that he had so paid the deposit, he had encouraged the plaintiff to bring the action. Two hundred and sixty chaldrons of soil were sold by a sheriff's auctioneer, who knew that there was a dispute about the property, but did not communicate that fact to the bidders; he afterwards told the plaintiff, the purchaser, that if he thought there was any remedy, he should give him (the defendant) notice

Peto v. Blades.

to retain the money. The plaintiff did not give the notice, and the auctioneer paid it over. But the Court held, that the money might be recovered back in this case, for the law will raise an implied promise that the party selling does 5 Taunton, 657, not know his want of title to the goods he is disposing of. But the auctioneer is not liable to pay interest on the deposit. He can never be so liable to interest "unless two circumstances concur. First, the con"tract must, on failure of the condition, be rescinded; "secondly, a demand of the deposit must be made, and a refusal to return it must be given." So that where an estate was sold by auction, and the treaty was kept open for four years, when the contract went off for want of a good title, but no demand of the deposit had been made upon the auctioneer, the Court gave their judgment against the recovery of interest.

By Burrough, J.

8 Taunton, 55.

8 Taunton, 45, Lee v. Munn.

Cowper, 395,
Bexwel. v.
Christie.

66

With respect to the understanding of an auctioneer with his principal as to bidding up the price of goods, we have already seen that puffing cannot now be practised with any degree of safety. And the auctioneer's liability on the subject came directly in question, in a case where he was directed not to let a horse go under a certain sum. The conditions of sale were, that the goods should be sold to the best bidder, &c. The horse was sold much under the price mentioned by the owner, and he sued the auctioneer for damages. But Lord Mansfield took a distinction between the cases of putting up goods at so much in the first instance, and of privately bidding upon the property, holding the latter practice a fraud upon the public, and the defendant was therefore allowed to have a nonsuit entered.

The hirer of a piano-forte sent it to an auctioneer for sale; the auctioneer sold it, and refused to deliver it to the right owner, until the expenses incurred had been discharged; but by Abbott, Justice, "The general rule " is, that if a man buy goods, or take them on pledge,

" and they turn out to be the property of another, the

66

Loeschman v.

owner has a right to take them out of the hands of "the purchaser; except, indeed, in the case of a sale 2 Starkie, 311, "in market overt." The auctioneer was, therefore, not Machin. entitled to retain the goods.

1 H. Blackstone,

However, the auctioneer, on the other hand, may recover from the buyer the price of goods sold and delivered at a public auction, although it may be quite 81, Williams v. evident at the sale that the property belongs to a third Millington. person who has employed the auctioneer as his agent. Still, it should be recollected, that the mere writing down the name of the purchaser in the sale-book of the auctioneer is not sufficient to avoid an objection on the score of the Statute of Frauds, where the auctioneer is the plaintiff, it not being contemplated by that statute that the agent should be one of the contracting parties.

An auctioneer cannot sue a vendor for the duty, where he misleads the party by saying that he has taken every precaution to prevent the duty from attaching. In a case of that description, the Court considered, that the auctioneer had warranted to the plaintiff that no duty would attach, and that, having pledged his experience, 6 East, 392, he had no right to make the vendor suffer for the mistake ham. he had committed.

The subject of sales by auction has been already See Babington's adverted to in a former part of this chapter.

Liabilities of the Bank of England.

Law of Auctions.

the transfer of

If the Bank refuse to transfer stock, and cannot justify With respect to such refusal, an action on the case may be maintained Stock. against them. And therefore it is, that a mandamus cannot be applied for successfully to compel them to

do so.

So, where the Bank delayed the passing a warrant of attorney for so long a time, that upon the sale of stock

Douglas, 524,
The King v. the

Bank of Eng-
land.

Ryan v. Moody, 52, Sutton, Bt.

v. The Governor, &c.

for the purchase of an estate, a difference of 2391. and upwards occurred, to the plaintiff's loss, Lord Chief Justice Abbott said, that although one of the greatest mercantile communities in the world, the Governor and Company of the Bank of England, were in no different situation from private individuals or private bankers, but were equally responsible for their acts, and it being put to the jury, that if they thought there was no reasonable ground for doubting the validity of this warrant of attorney, they found for the plaintiff to the full amount of his claim.

A very extraordinary case occurred some time since. The sum of 10,000l. Consols was sold under forged powers of attorney, and when the proprietor became acquainted with the fraud, he concealed the crime from the Bank for several months, the offender being his own brother. The judgment of the Court of Common Pleas was, that the Bank were liable to make good the defi2 Bingham, 393, ciency, and that property in stock is not transferred from the owner by being placed to the name of another person under a forged power of attorney.

Davis v. Bank of
England.

But this judgment was reversed in the Court of King's Bench; and although the reversal took place on the ground of a defect in the pleadings, the guarded manner which was used in delivering the judgment, so Cresswell, 785, as to avoid giving any sanction to the decision in the Bank of England v. Davis. Common Pleas, gives reason to suspect, that the latter is not to be considered as an unimpeachable authority.

5 Barnewall &

Where the claim to property in the funds is in dispute, there are abundant instances to show, that a Court of Equity will not order a transfer until the matter has been adjudicated, and an application by petition will not be entertained; the party, therefore, must have recourse to a bill.

The costs of the Bank are usually paid out of the estate

in dispute; but where the Company were made parties for the security of a legacy, it was ordered, that their costs should be paid out of the capital of the legacy.

Contracts with and Liabilities of Bankers.

We have already said much on this subject, and as it will be again mentioned in the pages which are devoted to Principal and Agent, a very general notice may be sufficient here.

By 7 Geo. 4, c. 46, an Act for the better regulating Copartnerships of certain Bankers in England, a firm of bankers of more than six are empowered to issue their notes at a distance of sixty-five miles from London, provided that they shall not have any house of business or establishment in London. The statute is devoted to the regulation of these copartnerships.

It is hardly necessary to observe, that the greatest attention to a customer's hand-writing is necessary on the part of the banker, although a distinction has been taken between discounting bills, and paying them; because, in the former case, the attention of the person is not drawn to the instrument so strongly as in the 197. latter. But if the banker pays more than the order authorizes them to do, he will be liable to his customer.

1 Carrington,

As where a cheque was altered by expunging the dates and figures, and the defendant paid it, the Court held, that the customer could not be charged for more than he had actually drawn, and the plaintiffs had judgment, the 5 Barnewall & Cresswell, 750, banker having claimed to retain in satisfaction of the Hall v. Fuller. forgery.

So, where two cheques had been drawn, the first, being incorrect, was torn into four pieces by the drawer, the second was regularly paid; some one pasted the pieces of the defaced cheque, and presented it, when the 2 Campbell,485, Scholey v. banker's clerk paid it without making any inquiries; Ramsbottom.