comes the statute 5 G. 2. c. 30. s. 22., which does nothing but repeal the restrictive clause, that it shall not suffice for a commission. This statute does nothing for the proof of debts which are in their nature contingent. There are other statutes which enable the party to prove contingent debts. This debt is not, on the face of the instrument, contingent; but it is thus far, in the nature of the transaction, contingent, that till the drawer has paid his counter-bill, the Court of Chancery will restrain him from receiving any dividend. Therefore, though it is, on the face of the instrument, a debt payable at a future time, it is, in its nature, a contingent debt. The cases cited decide nothing on this point. And it would be a singular construction on these acts, that though a man, at the time of taking out a commission, is not entitled to receive a shilling out of the bankrupt's estate, nor ever will receive a shilling, unless he pays his counter-bill, he shall be able to stop the bankrupt's trade, and take all his effects into his own hands, by this, which is not improperly called a statutory execution, in order that they may be divided amongst all the other creditors of the bankrupt, though himself is not entitled to receive any part thereof: and as no case has hitherto decided that the holder of such a bill is a creditor who may sue out a commission, we are bound to decide upon principle, that he is not such an one; the Court, therefore, is of opinion that the action cannot be maintained, and the rule nisi to set aside the verdict and enter a nonsuit must be made 1811. SARRATT ข. AUSTIN. [ 208 ] Absolute. WHITE v. PROCTOR. THIS [ 209 ] Nov. 28. An auctioneer is by implica tion an agent duly authorized tract for the purchase of a real estate on behalf of the highest bidder. And his writing down the name of the highest bidder in the auctioneer's book is a sufficient signature to satisfy the statute of frauds. And if the highest bidder is agent for another, the auctioneer's signature of the bidder's name will bind the principal. At least if the principal is present, and consulting with the agent during the sale, and makes no objection before the entry made in the book. the 1811. WHITE บ. PROCTOR. the sittings after Easter term 1811, before Mansfield, C. J., the evidence was, that a sale of lands by auction being advertised, the auctioneer was prepared with a paper in the following form, "Sale of Mr. Kemey's estates at the West-gate-house, at the town of Newport, on Wednesday the 26th day of September 1810. Comprised in six lots. [210] The 2d condition of the sale was, that the highest bidder should sign a contract for the purchase: the 6th was, that the timber and coppice wood should be taken at a price to be fixed before the sale. Another was, that the purchaser should pay the auction duty. At the time of the sale a paper was exhibited to the bidders, in which 3700l. was stated as the price of the timber and coppices in the first lot. The defendant was present, but did not bid: Stokes, an attorney, who was the agent of the defendant, bid several times: the defendant and Stokes consulted together; they desired the bidding might be suspended, and went out of the room, and again consulted together. After their return the lot was knocked down to Stokes, as the highest bidder, for the price of 86007., and the auctioneer immediately entered in the fourth column of the above mentioned paper "8600," as the purchase price, in the fifth, "2537. 15s.," as the amount of the excise duty, and in the sixth, "Mr. Stokes," as the name of the purchaser. After the sale was over, Stokes being requested to sign a written contract for the purchase, alleged that he had bid the sum of 86002. under a misunderstanding, conceiving that that sum was intended to be inclusive of the price of the timber and coppice wood, whereas it was now alleged to be exclusive of it, and the defendant objected that Stokes had exceeded his authority, if the sum were exclusive of the wood, and expressly directed him not to sign any contract. There being therefore no other signature by the party to be charged, than the writing of Stokes's name by the auctioneer in the sixth column, it was contended by the defendant, that this was not sufficient to take the case out of the statute of frauds: the jury, however, however, found a verdict for the plaintiff, subject to this point reserved, upon which Best, Serjt., in Trinity term last, obtained a rule nisi for setting aside the verdict, and entering a nonsuit. Lens, Serjt., in this term, shewed cause, contending that this case was governed by that of Emmerson v. Heelis, ante 2. 58., where it was ruled that the auctioneer was an agent to sign for the purchaser upon a sale of land. The only difference is, that here the name of the auctioneer is not found signed or written by himself as it was there; but that is immaterial, for it is the name of the purchaser, not of the agent, which by the statute is required to be signed. Best, in support of his rule. If this were res integra it might reasonably be doubted, whether the auctioneer appointed ex parte by the one party, shall be, by necessary consequence, an agent lawfully authorized to sign for the other. But admitting that point to be decided, there is in the present case no signature either of the party purchasing, or of his agent. In Emmer. son v. Heelis, the auctioneer wrote his own name in the heading of the paper, and the case was decided on that ground. [Mansfield, C. J. In that case there was no argument upon the circumstance that the auctioneer had signed, nor was the case at all decided on that ground: his saying "sold by John Wright" did not make him agent for the buyer: the only question was, whether his signing the purchaser's name was done by him as agent for the purchaser.] Here is no signing of the defendant's name, as purchaser: the auctioneer signs for Stokes, and therefore, according to Emmerson v. Heelis, this action might have been maintained against Stokes: but Stokes is not the defendant, but only the defendant's agent. By virtue of the authority invested in him, Stokes might have signed the defendant's name, and it would have bound him but delegatus non potest delegare; he could not transfer to the auctioneer the power of signing for the defendant, and the defendant when called on to sign himself, after the sale, expressly refused, and repudiated the signature, and Stokes, by the defendant's express direction, also refused to sign. The second condition of sale likewise excludes a signature by the auctioneer, for it is, that "the highest bidder should sign a contract for the purchase." An auctioneer may be an agent by implication, but it is impossible he should be an agent in express contradiction to the directions of his principal. [Heath, J. Stokes must have appeared as principal to the VOL. IV. M auctioneer, 1811. WHITE V. PROCTOR. [ 211 ] [ 212 ] 1811. WHITE บ. PROCTOR. auctioneer. Mansfield, C. J. If an agent has cut his finger so that he cannot write, and says to another, write down my name, will not that signature bind the principal ?] Cur. ado. vult. MANSFIELD, C. J. now delivered the opinion of the Court. This is an action brought to recover the auction duty, paid by the auctioneer. On looking at the case of Emmerson v. Heelis, it is impossible to distinguish this case from that. The question there was, first, whether the thing contracted for was an interest in land, and that being decided, the next question of which it) turned was, whether there was a signature of an authorized agent for the buyer? and it was there held that entering the name of the buyer in the auctioneer's book was just the same thing as if the buyer had written his own name. There is no distinguishing the two cases; here the auctioneer writes down the name of the buyer; and therefore that is sufficient, and the CASES ARGUED AND DETERMINED IN THE COURTS OF COMMON PLEAS, AND EXCHEQUER-CHAMBER, IN Hilary Term, In the Fifty-second Year of the Reign of GEORGE III. 1812. WRIGHT and Another v. WAKEFORD. Jan. 23. consent of the testified by writing under their hands and seals, attested credible witnesses, to make THIS HIS was a case directed for the opinion of this Court, by Apower to trusLord Eldon, Chancellor. By indentures of lease and tees with the release, bearing date respectively the 10th and 11th days of cestui que trusts June 1776, the release being of six parts, and made between Thomas Wood the elder and Ann his wife of the first part; Thomas Wood the younger of the second part; Mary Wood, the by two or more wife of Thomas * Wood the younger, of the third part; Edward Bacon and Robert Hudson of the fourth part; the Right sale of lands, Honourable Horatio Lord Walpole and Henry Wilmott of the sued if the atfifth part; and Sir Joseph Mawby and John Smith Budgen of testati the sixth part; in consideration of a marriage then intended, delivered in the and shortly afterwards had, between Thomas Wood the younger two witnesses. and Mary his wife, and for other considerations, divers here- By three ditaments, (being parts of the hereditaments agreed to be field, C. J. tation added after many years, witnessing the signing, sealing, and delivery at the time of making the deed, will not supply the defect. By three against Mansfield, C. J. is not well pur. only sealed and presence of the against Mans And an attes [214] VOL. IV. |