28 SALE BY AUCTION. 



not an arbiter to decide all questions arising out of the sale, 

 but only to see fair play and decide matters arising while the 

 sale is going on. (a) It is the implied duty of the auctioneer 

 to give the buyers fair opportunity of bidding ; (h) but he is 

 not res]3onsible for any breach of the conditions of the sale, 

 unless he has had knowledge of it.(c) He is personally 

 liable for fulfilment of the contract if he does not disclose 

 the exposer's name, (d) or if it appear that he is himself the 

 seller, (e) The purchaser of a horse at an auction is not 

 entitled to sue both the auctioneer and the principal, on an 

 alleged breach of warranty. Such an action was dismissed 

 against the auctioneer, in respect that the pursuer, having 

 alleged that the principal had taken the horse back, must be 

 held to have elected to sue the principal. (/) His position is 

 that of factor for the seller till purchase, and then custodier 

 for the buyer. ((/) He has authority to receive payment, if 

 there be nothing to the contrary in the conditions of sale ; 

 but he has no implied authority to warrant a horse, and any 

 warranty given by him without authority is given at his own 

 risk entirely. (A) _A statement that a horse is the property 

 of the vendor made by himself or an agent is a sufficient 

 warranty of the ownership, and an assertion by the auctioneer 

 that all the horses in the sale are the bona fide property of 

 the person whose stud he is selling vitiates a sale made on 

 the faith of that representation, if such horse has been put 

 into the sale without notice, because the purchaser would 

 probably give a much higher price for a horse belonging to 

 the stud in question than for one w^ithout a character, (i) 



(a) Strachan v. Auld, 1884, 11 R 756. 



(6) Burns v. Monypenvy, 1807, M. Appx. Sale 4 (1 111. 117). 



(c) Mainpricc v. Wcstlaj, 1865, 6 B. and S. 420 ; Warlow v. Harrison, 1850, 

 29 L.J., Q.B. 14. 



{d) Franl-Jyn v. Lamond, 1847, 4 C.B. 637 ; Fcvrkr v. Dods, 1865, 3 M. 561. 

 For issues, see Appx. iii. 



(c) TlW/e V. Home, 1877, 2 Q.B.D. 355. 



(/) Fcrrier, cit. 



(g) Benj. 247 ; Warlou', cit. 



(7i) Payne v. Lecovfield, 1882, 51 L.J., Q.B. 642. 



(«■) Bcxucll V. Christie, 1776, Cowp. 395. 



