42 



HORSEDEALERS, REPOSITORIES AND AUCTIONS. 



An Auc- 

 tioneer can 

 set lip /MS 

 tertii. 



Interpleader 

 by Auc- 

 tioneer. 



Goods privi- 

 leged from 

 distress. 



whether the Auctioneer has such an interest in them as 

 to recover the price {t). 



An Auctioneer can set up the jus tertii, if he defends 

 the action upon the right and authority of the third person, 

 to a claim for the proceeds of a sale of goods, which he has 

 been employed to sell by auction by a person who had 

 gained possession of them by an illegal distress (w) . 



An Auctioneer may interplead where he has sold goods, 

 and the proceeds of the sale are claimed by a third 

 party (.r) ; and it seems that he is entitled to do so not- 

 withstanding that he claims a lien on the proceeds of the 

 sale for his commission, for in such cases he claims no, 

 interest in the corpus of the property {y) . But where the 

 claims are not co-extensive, an auctioneer has no right to 

 interplead. Thus, in a case where the defendant, the 

 proprietor of a Horse repository, sold there by public 

 auction a Horse to the plaintiff, warranted quiet to ride 

 and in harness, but subject to a condition, by which, if 

 considered by the buyer incapable of working from any 

 infirmity or disease, it might be returned on the second 

 day after the sale, and the matter determined by veterinary 

 surgeons according to the terms provided for in such con- 

 dition. The Horse was returned accordingly by the 

 plaintiff, who demanded to have back the money he had 

 paid for the piu-chase, and this being refused, he brought 

 an action against the defendant for damages for breach of 

 the warranty, and the party who had placed the Horse at 

 the repository for sale, claimed of the defendant the 

 proceeds of the sale, stating that the Horse had left the 

 repository perfectly sound ; it was held that the defendant 

 was not entitled to an interpleader order {£). 



Goods sent to an Auctioneer to be sold on premises 

 occupied by him are privileged from distress for rent {a) ; 

 although he may sell in a place let to him merely for 



(t) See per "Wilson, J., Williams 

 V. MilH>ir/toH, 1 H. Bla. 86. 



{u) Biddle V. Boml, 6 B. & S. 

 225; 34 L. J., Q. B. 137. 



(.r) Best V. Hayes, 32 L. J., Ex. 

 129. 



iy) Ibid., per Martin, B. In 

 this case the Court of Exchequer 

 refused to follow the decision in 

 Chancery in Mitchell v. Hayne (2 

 Sim. & S. 63), where it was held 

 that an Auctioneer, in such a case, 



covdd not file a bill of interpleader. 

 As to interpleader generally, see 1 

 & 2 Wm. 4, c. 58, ss. 1, 2, 7; 23 

 & 24 Vict. c. 126, ss. 12—18 ; 36 & 

 37 Vict. c. 66, Sch. Ord. 1, r. 2. 



(;) Wright v. Freeman, 48 L. J., 

 C. P. 276; 40 L. T., N. S. 134; 

 ibid. 358, C. A. 



(rt) Adams v. Grave, 1 C. & M. 

 380 ; Williams v. Holmes, 22 L. J., 

 Ex. 283. 



