Star.
London, England, 1828-01-28 00:00:00

the sale, and whom the plaintiff knew to be the vender
of the estate. An agreement between the plaintiff and
defendant WAS signed in the usual form. by which it was
stipulated to complete the purchase on a day named.
Subseque: tly, however, a defect was discovered in the
vender's title, and on the part of the plaintiff a notice
was given to the defendant, as auctioneer, not to pay
over the deposit money to the plaintiff. He had, how-
ever. already paid it over ; and at the trial it win con.
tenci,d on his part that such payment exonerated him
from all liability to the plaintiff. Lord Tenterden,
however, directed a nunsuit, on the ground that the de
Pendant, as stakeholder between the parties, ought to
have retained the money in his hand until the purchase
was ready for completion, or at all events until all objec-
tions to the title were removed. •

Mr. Fot.t.ary now applied for a rule to spew cause why
the nonshit should riot be set aside, and a new trial
granted. Although his Lordship (Lord Tenterden) had
on the trial laid great stress on the circumstance of the
defendant having signed the agreement, yet he (Mr.
Follett)should submit that the defendant had not by
that act rendered himself personally liable. He contended
that if .n auctioneer paid over deposit money before he
received notice to the contrary, or before he knew that
any objection to the tide was made, no acti n would
lie against him. There was not, he admitted, any di-
rect authority for this doctrine : but it had been inci-
dentally advertei to in many cases where the question
of liability of auctioneers had come -helots the Court.
At all events he submitted, on the authority of many
cases which he could cite, that an action for money had
and received (which .the present was) would not lie
against a party being a known agent, who had received
no notice not to part with the money.

Mr. Justice liirtny—The defenclaint, you know,
receives the money as a stakeholder, and therefore in
paying it over he is guilty of a breach of his duty. It
was his duty to hare retained the deposit till all the
conditions of sale had been colbplie4 with.

Lord TIDITICRDZs—His duty is to keep the money; I
am verrunwilling to cast even the shadow of doub
upon the liabilky of auctioneers in such cases ; but we
will hear what you have to say.
Mr. FOLLSTT said there were several case; in which
the Judges had declared that an auctioneer was not lia.
ble in an action for money had and received, unless he
paid the money over after notice. The Learned Counsel
then cited the case of " Hardacre v, Stewart," in Espi.
nassee Reports, and "Ed w auis v. Hodding," " Lee,
and Bunn,' and " Horsebeld and Handley," in sth and
filch Taunton. It had been considered in ibtne cases
,that an auctioneer was a stakeholder, but in the present
case the defendant had been employed on the part of the
vender only, and did not Act as an agent of both parties.
An auctioneer employed as the defendant- had been
could not be cosisideresi a stakeholder, for if he became
insolvent while be-held the depbsit, thp loss would fall
Go the vender. .He was therefore elausiVily the agent
of the vender, and the mere receipt of the diposit Money
.did not make beat a. stakeholder. •
• . • -,..
Lord Taarreaosod•—He may be an agent* the
winder. and yet a •stakeholder. In this case the de:
fendatit sold the estate, and received, the • deposit
money. • He and the plaintiff signed an step-.
Mum, the terms of which were--. 4 We do hereby.
Mutually agues to complete the purchase," tkc. Here
the defendant, acting for his principal, signed the con-
act iii such terms as rendered it personally binding
upon himself. If an auctioneer were not to be made
bode an such a ease as this, instances might occur where
a vender being in needy circumstances, might get the
money into- his own hands, the consequence of which
would bet bat the auctioneer would be exonerated from
aU responsibility, and all confidence in purchases at
auctions woul.kbe destroyed.—:Rule refused.