#### ROBERT G. RANKIN *vs.*ALEXANDER MATTHEWS.

What is stated by ail auctioneer in his advertisement may be explained by what is said by him at the time of the sale.

Appeal from the Superior Court of Law of New Plan-over, at the Special Term in January, 1847, his Honoi' Judge Manly, presiding.

*287This was an action to recover the price of certain goods, sold at auction in the town of Wilmington, in pursuance of the annexed advertisement.

AUCTION.

On Thursday morning at 9 o’clock, I will sell at the’Store of Mr. Robert Simpson, his stock in trade, consisting of Molassos, Coffee, Sugar, Soap, Crockery, and a general assortment of Groceries.

R. G. RANKIN, Auctioneer.

June 24th, 1844.

PLEA — A SET OFF.

The facts were, that the goods mentioned had constituted the stock in trade of a merchant by the name of Robert Simpson, and were sold by the plaintiff, an auctioneer in the town of Wilmington, at the • store house* which had been occupied by Simpson. Some weeks, however, prior to the sale, the goods were conveyed by Robert Simpson to Miles Costin, to be by him sold and applied to the payment of a debt, upon which he the said Miles Costin was surety. The goods were taken possession of by Costin, he keeping the key of the store from the time of the conveyance, until it was delivered to the auctioneer, Rankin, with instructions to sell for his, said Costin’s, benefit.

The defendant proved a debt due to him from Simpson of a greater amount than the one sued upon.

The Court instructed the jury, that to entitle the defendant to his set off, it should' be established by him, that the goods were represented and sold by the auctioneer as the goods of Simpson; and the evidence upon this point (including the advertisement) was left to the jury.

The jury returned *&*verdict upon the issue in favor of the plaintiff.

The defendant had a rule for a new trial, and supported it upon the ground, that the Court ought to have-instructed the jury, that the advertisement was sufficient' *288of itself, and conclusive upon the auctioneer, as to the property of the goods, so as to let in the set off. The Court thought otherwise and discharged the rule.

Judgment for the plaintiff and appeal by the defendant.

*Iredell,*for the plaintiff.

*I). Iicid,*for the defendant.

Daniel, J.

The Court charged the jury, that the defendant was entitled to his set off, if he established, that the goods were represented and sold by the auctioneer, as the goods of Simpson. And the evidence upon that point, including the advertisement of the auctioneer, was left to the jury; and they found the issue against the defendant. The defendant insisted, that the advertisement concluded the plaintiff to deny, that the goods-when sold, did not belong to Simpson ; as he stated, in the said advertisement. that the}r were, “ his *stock in trade.”*We think with his Honor, that what was said in the advertisement by the auctioneer might be explained, by what was said by him at the time of the sale. All the evidence went to the jury, and they have negatived, that the goods were sold as- the property of Simpson. We think the Judge acted right, in receiving other evidence besides the advertisement, and then leaving it all to. the jury, upon the question, whether the plaintiff sold the goods as the property of Simpson. In England, by Statute, the auctioneer is obliged to send to the excise officer a copy of his advertisement, and an appraised schedule of the property offered for sale, with the names of the owners. All this is intended to check the auctioneer in accounting for the auction taxes. But these regulations are not in force here ; and the rules there established, for the better collection of the revenue, are no part of our law.

We think, that the judgment must be affirmed.

Ter Curiam. Judgment affirmed.