goods to any amount under 2001., and that it should go towards the legacy of 2001. This evidence was objected to, on the part of the plaintiff, as tending to vary the printed conditions of sale; but the learned Judge received it, and told the jury that, if they believed that by the contract between the parties the legacy was to be set against the price of the goods, the claim was answered. The jury found for the defendant; and the learned Judge gave the plaintiff leave to move to enter a verdict for the plaintiff for 1451. Erle now moved accordingly: The auctioneer was the agent of the defendant; and, by his writing down her name, she became a purchaser under the printed conditions. In Gunnis v. Erhart (1) it was held that declarations, made by the auctioneer at the time of the sale, could not be received for the purpose of varying the printed conditions. Powell v. Edmunds (2) and Shelton v. Livius (3) are to the same effect. (COLERIDGE, J.: The defendant said that she did not purchase at the sale. PATTESON, J.: Your authorities relate merely to alterations made in the conditions of sale, affecting all purchases at the sale: the question here is, whether the purchase was under the sale by auction at all.) That cannot be disputed, after the plaintiff's name has been taken down as highest bidder. The defendant, in order to prevent this from having the usual legal effect, should have told the auctioneer, at the time of the sale, that she was not purchasing under the conditions. LORD DENMAN, Ch. J.: The jury must be taken to have found that the bargain related to the goods purchased at the sale, subject to the opinion of the Court whether the bargain could be given in evidence. I do not (1) 2 R. R. 769 (1 H. Bl. 289). See Jones v. Edney, 13 R. R. 803 (3 Camp. 285). (2) 11 R. R. 316 (12 East, 6). (3) 37 R. R. 746 (2 Cr. & J. 411; 2 Tyr. 420) BARTLETT v. PURNELL. [ 793 ] BARTLETT see why it should not, as it took place before the auction. The PURNELL objection made is, that the auctioneer took down the defendant's v. [ *794 ] name at the sale. No doubt an auctioneer may be agent for both parties but here the bargain was, that what the defendant should buy was to be set off against the legacy. We do not overrule the former cases; but we consider them inapplicable. The auctioneer is not, er vi termini, agent for both *parties: that depends upon the facts of the particular case. LITTLEDALE, J.: Goods are put up to auction; and a person to whom 2007. is due agrees to purchase, on the terms of the price being set against the debt, and goes to the auction in pursuance of this special agreement. It is said that the auctioneer is her agent: but it does not appear that he was so here. He put her name down; but the auctioneer must do so; he gives a bond to the commissioners of excise conditioned for his accounting for the duty. Then the sale to the defendant was exempted from the general conditions of the sale; and she was entitled therefore to set off the legacy. PATTESON, J.: We do not infringe upon former cases by refusing to grant this rule. When a party purchases under conditions of sale, he cannot give evidence to vary the contract. But here, properly speaking, the defendant does not so purchase. The bargain is made, subject to the original contract as to the payment. COLERIDGE, J.: The point suggested by Mr. Erle does not arise upon the facts. The question is, whether the defendant bought at all at this auction. If she did, there must be a verdict against her, as the record stands but the jury were right in saying that she did not. The conversation was good evidence of that: she was to take the goods; but they were to be reckoned at the highest price bidden for them. The auctioneer wrote the name down: but that was merely the necessary way of fixing such price. Rule refused. LAY v. LAWSON. (4 Adol. & Ellis, 795-798.) Declaration complained that defendant published an advertisement in a newspaper, stating that a capias had issued against plaintiff, and that it had been impracticable to take him, and offering a reward for such information to be given to the sheriff's officer as would enable him to take plaintiff; innuendo that plaintiff was in indigent circumstances, incapable of paying the debt, and keeping out of the way to avoid being served with process. Plea, that a capias had been issued, indorsed for bail, and delivered to the sheriff; that defendant had kept out of the way to avoid being taken; that the sheriff's officer had been unable to take him; and that defendant had published the advertisement, at the request of the party suing out the writ, within four calendar months of the date of the writ, to enable the sheriff and his officer to arrest. Held, a justification. CASE for libel. The first count stated that the plaintiff was the keeper of an hotel, and that the defendant printed and published in the Times newspaper a certain false &c., of and concering the plaintiff, as follows: "Mr. Joseph Lay" (the innuendoes identifying this name with the plaintiff throughout). 'Whereas a writ of capias dated the 15th day of June last has been issued against Mr. Joseph Lay, late of No. 31, Edgware Road, hotel-keeper, but it has hitherto been impracticable to effect a caption, a reward of 51. will be paid to any person who will give such information to Mr. Selby, sheriff's officer, of No. 31, Chancery Lane, as shall enable him to take the said Joseph Lay. The reward will only be paid on the caption being made." The libel was then further set out, describing the person of the plaintiff, and the following innuendo was added; "thereby then meaning that the plaintiff was in bad and indigent circumstances, and incapable of paying his just debts, and that he was keeping out of the way in order to avoid being served with process for debt." The second count stated the libel to be in the form of and as an advertisement. Pleas, 1. Not guilty. 2. That heretofore, and before the time &c., to wit, &c., one Henry Cleeve, according to the form. &c., had sued and prosecuted, out *of the Court of Common Pleas in the county of Westminster, a certain writ of our Lord the King called a writ of capias against the plaintiff, directed to the Sheriff of Middlesex, and dated &c., by which writ our 1836. April 19. [795] [ *796 ] said Lord the King commanded the said sheriff &c. (setting out the capias); which said writ afterwards, and before the delivery thereof to the said sheriff to be executed as is hereinafter mentioned, to wit on &c., was marked and indorsed for bail for 801. by affidavit, according to the form &c., and which writ so indorsed, afterwards, to wit on &c., was delivered to Alexander Raphael, Esq., and John Illidge, Esq., who then and from thence until and at the time &c. were sheriff of the said county of Middlesex, in due form of law to be executed; that afterwards, and before &c., to wit, on the day and year last aforesaid, and from thence continually afterward until the times of the committing &c., the plaintiff hid and concealed himself, and kept out of the way, in order to avoid being taken and arrested by the sheriff: and thereby the plaintiff did, for and during all that time, hinder and prevent the said sheriff from taking and arresting him upon and by virtue of the said writ at the suit of the said H. C. for the cause aforesaid, although the said A. R. and J. I., as such sheriff, did during that time use and employ all necessary means &c. in that behalf; that the writ of capias in this plea mentioned, and the writ of capias in the said supposed libels respectively mentioned, are respectively the same writ and not other &c. And that, the plaintiff remaining and continuing so concealed as aforesaid, and the said sheriff being and remaining wholly unable to find out, or take, or arrest him the plaintiff under the said writ as aforesaid, the defendant, at the request of George Stephen, the attorney of and for the said Henry Cleeve in that behalf, and in order to enable the said sheriff and Philip Selby, then being bailiff of the said sheriff in that behalf, and the same person as is named and described as Mr. Selby in the said supposed libels, to take and arrest the said plaintiff under and by virtue of the said writ, did, afterwards and within four calendar months from the date of the said writ, including the day of such date, to wit at the said several times when &c., print and publish &c., as he lawfully &c. Verification. Replication, de injuria, and issue thereon. * On the trial before Lord Denman, Ch. J. at the Middlesex sittings after Hilary Term last, a verdict was found for the plaintiff on the first issue, and for the defendant on the second. Thesiger now moved (1) for a rule to shew cause why judgment should not be entered for the plaintiff non obstante veredicto : The second plea shews no justification. On the trial, the defendant's counsel cited Delany v. Jones (2), which was an action for a libel contained in an advertisement, and where Lord ELLENBOROUGH is reported to have said, "That though that which is spoken or written may be injurious to the character of the party, yet if done bonâ fide, as with a view of investigating a fact, which the party making it is interested in, it is not libellous" (3). But the LORD *CHIEF JUSTICE, on the trial of this cause, doubted the law laid down in that case; and said that he was not prepared to hold that bona fides was the only question, or that the right contended for existed, except for the purposes of public justice; and that, if that were so, every private transaction might be publicly inquired into by means of a newspaper. LORD DENMAN, Ch. J.: I do not know that I meant to say that the right existed, even in the case of a public charge; nor do I know that that is necessary for Lord ELLENBOROUGH's view. The libel in the case cited was inferential only. I have great doubt whether, there, the interest which the wife had in the inquiry could justify the offering a reward in a newspaper. LITTLEDALE, J.: And this is a reward for the furtherance of a civil suit only. The COURT at first granted the rule; but afterwards (April 21), the COURT said that they felt doubtful whether it should be granted, intimating a distinction between justifying on account of the cause of publication, and justifying by averring the truth (1) Before Lord Denman, Ch. J., Littledale, Patteson, and Coleridge, JJ. (2) + Esp. 191. (3) The question in that case was, whether proof of the facts negatived the malice, as there was only a plea |