borough, C. J." If there are two contemporary writings, the counterparts of each other, one of which is delivered to the opposite party and the other is preserved, as they may both be considered as originals, and they have equal claims to authority, the one which is preserved may be received in evidence without notice to produce the one which was delivered. So it must have been in the cases which have been cited, and if a duplicate of the bill delivered is offered I am ready to receive it. But I am quite clear, that this evidence from the plaintiff's books is inadmissible to prove that a bill was delivered according to the statute. I approve of the practice as to notices to quit, and I remember when the point was first ruled by Mr. Justice Wilson, who said that if a duplicate of the notice to quit was not of itself sufficient, no more ought a duplicate of the notice to produce, and thus notices might be required in infinitum." Plaintiff nonsuited.

Liability of Attornies.-An action on the case may be maintained by a client against his attorney for negligence or unskilfulness in the discharge of his professional duty; as where an attorney neglected to charge a defendant (a prisoner) in execution within the time allowed by the practice of the court, by reason of which neglect the defendant was superseded; it was holden, that the action was maintainableagainst the attorney for negligence, but that as it sounded in damages, it was competent to the jury to find what damages they thought fit, and that they were not restrained to find the amount of the whole debt, in a case where it appeared that the debtor was not totally insolvent, and that the creditor might probably in time obtain some part of his debt by execution against his goods.

But it is not every neglect that will subject an attorney to such an action; for an attorney is only bound to use reasonable care and skill in managing the business of his client.He is only liable for crassa negligentia.-Hence an action cannot be maintained against an attorney for negligence in not discovering a defect in the memorial of an annuity, which was subsequently holden to be a defect, upon a doubtful construction of the statute.

The solicitor under a commission of bankruptcy is not liable in the first instance to the messenger, whom he nominates, for his bill of fees; but if the solicitor agree with the

c Russell v. Palmer, 2 Wils. 325. See d Baikie v. Chandless, 3 Camp. N. P. Pitt v. Yalden, 4 Burr. 2060. C. 37.

petitioning creditor to work a commission for a sum certain, and receive a great part of that sum, he will be liable to such messenger.

In an action against an attorney for suffering M. C. a debtor in custody at the suit of the plaintiff to be superseded, it was averred that M. C. was indebted to the plaintiff. It appeared in evidence that at the time of contracting the supposed debt, M. C. was a married woman. This was holden to be a fatal variance.

Hartop v. Juckes, 2 M. & S. 439.

f Lee v. Ayrton, one, &c. Peake's N. P. C. 119.

CHAP. VI.

AUCTION.

Of Agreements relating to the Sale of Lands and Goods by Auction. Cases where the Duty attaches. Liability of Auctioneer. Recovery of Deposit and Interest on Defect of Title.

A SALE of lands by auction is within the 4th section (1) of the statute of frauds (29 Car. 2. c. 3.), and to make it binding, the solemnities required by that statute must be observed: the auctioneer is to be considered as the agent of both parties. With respect to sales of goods by auction, it has not been decided that such sales are within the 17th section (2) of the same statute; but the better opinion seems to be that they are. Assuming that they are, it has been determined that the auctioneer is the agent of both parties, and that a note or memorandum in writing of the bargain, made and signed by him, will be sufficient to give validity to

a Walker v. Constable, 1 Bos. & Pul. b Kemeys v. Proctor, 3 Ves. & Beames, 306. 57.

66

66

(1) By which it is enacted, that "no action shall be brought whereby to charge a defendant upon any contract or sale of "lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall "be brought, or some memorandum or note thereof, shall be in "writing, and signed by the party to be charged therewith, or some "other person thereunto by him lawfully authorized."

(2) By which it is enacted, that "no contract for the sale of any "goods, wares, and merchandizes, for the price of 107. or upwards, "shall be good, except the buyer shall accept part of the goods so "sold, and actually receive the same, or give something in earnest "to bind the bargain, or in part of payment, or that some note or "memorandum in writing of the same bargain be made and signed "by the parties to be charged by such contract, or their agents "thereunto lawfully authorized.”

the contract. The defendant bought a lot of goods for more than 107. at an auction. Catalogues and conditions of sale were printed, and the defendant was the best bidder. The auctioneer wrote the defendant's name, and the price, against the lot in the printed catalogue, by order of the defendant. Between the day of sale and the time fixed by the conditions for taking the lot away, the defendant sent his servant to see them weighed, which he did. The defendant neglecting to take away the goods, they were resold at a considerable loss, and an action was brought for the difference; and the court strongly inclined-1. That sales by auction were not within the statute of frauds, because a number of persons are generally present, who can testify the terms of the contract: 2. They held the contract here was sufficiently reduced into writing and signed by an agent of the defendant's, for the auctioneer for that purpose was his agent (3): 3. They held the weighing by his servant was a delivery: 4. Yates, J. held, that, as the contract was executory, viz. the lot to be taken away in six weeks, it was not within the statute (4).

A bidding at an auction may be retracted before the hammer is down, because the assent of the seller is not signified till that takes place.

Verbal declarations of the auctioneer, superadding any term to, or contrary to the printed conditions of sale, are not admissible in evidence.

An action will not lie against an auctioneer for selling a horse at the highest price bid for him3, contrary to the owner's express directions, not to let him go under a larger sum.

c Simon v. Motivos, 3 Burr. 1921. more fully stated in Bull. N. P. 280. under the name of Simon v. Metivier. Best Report in 1 Bl. Rep. 599. cited in Mason v. Armitage, 13 Ves. jun. 25.

d Fayne v. Cave, 3 T. R. 148.
e Powell v. Edmunds, 12 East, 6.
f Gunuis v. Erhart, 1 H. Bl. 289.
g Bexwell v. Christie, Cowp. 395.

(3) This rule has been acted upon ever since this decision; and in conformity with such rule, it has been holden, that, upon sales made by brokers acting between the parties buying and selling, the memorandum in the broker's book, and the bought and sold notes transcribed therefrom, and delivered to the buyers and sellers respectively, are a sufficient compliance with the statute to render the contract of sale binding on each. See the opinion of Lord Ellenborough, C. J. in Hinde v. Whitehouse, 7 East, 569.

(4) If any money is paid as a deposit, though short of the sum stipulated by the conditions, and accepted as such by the auctioneer, it will bind the bargain quoad the auctioneer. Hanson v. Rober deau, Peake's N. P. C. 120.

The plaintiff was an auctioneer, and employed by J. S. to sell his goods by auction". The sale was at the house of J. S. and the goods were known to. be his property. The defendant bought goods to the amount of 71. 9s. 6d. and after packing them in a cart, which he had prepared ready at the door, paid the plaintiff 21. 4s. 6d. in cash, and put a receipt into his hands for five guineas as for a debt due from J. S. to the defendant. While the plaintiff was hesitating about the propriety of taking the receipt in payment, the defendant drove off the cart with the goods: afterwards the plaintiff, being called upon by J. S., paid to him, as he refused to accept the receipt, the whole sum for which the goods were sold to the defendant, and brought an action against the defendant for goods sold and delivered, money had and received, &c. in order to recover the five guineas. After verdict for the plaintiff, Lord Loughborough, Gould, J., and Heath, J. were of opinion, that the action might be maintained, on the ground that an auctioneer has a special property in the goods which he is employed to sell, and that it is the same thing whether the goods be sold on the premises of the owner or in an auction-room. Wilson, J. thought the verdict right, 1. Inasmuch as the party who has gained possession of the goods should be estopped from saying, to avoid a just payment, that there was not any property in him from whom the possession was derived; 2. That every part of the declaration was proved, and property was not stated to be in the plaintiff, but only that the goods were sold and delivered by him to the defendant, which was proved, and afforded a strong reason, why the defendant should not be permitted to dispute the effect of the sale and delivery.

If the owner of an estate, put up to sale by auction1, employ puffers to bid for him, it is a fraud on the real bidders (5), and the highest bidder cannot be compelled to complete the contract,

h Williams v. Millington, 1 H. Bl. 81. i Howard v. Castle, 6 T. R. 642. recog

nised by Grose and Lawrence, Js. in 8 T. R. 93, 95.

(5) The owner may legally and fairly bid, either by himself or an agent, if before the bidding begins he gives public notice of his intention, and in such cases if he becomes the purchaser, he may claim an allowance of the duties, (see the statutes 17 G. 3. c. 50. s. 10. and 19 G. 3. c. 56. s. 12.) provided, that the notice required be given, and the delivery thereof verified upon the oath of the auctioneer, together with the fairness of the transaction.