416 WAKRANTY 



only, and wherever the place of sale may be, he only becomes the agent of 

 the buyer on the fall of the hammer (Warloiv v. Harrison, 28 L.J. 2 

 B. 18, 1858). There is no need to give a written authority to an 

 auctioneer. The mere act of sending a horse to a repository for the sale 

 of horses would be taken as an implied authority to sell, and an owner 

 would be bound by a hona-fide sale even without his express consent. 

 "An auctioneer has a possession coupled with an interest in goods which 

 he is employed to sell, not a bare custody, like a servant or shopman. 

 There is no difference whether the sale be on the premises of the owner 

 or at a public auction-room; for the premises of the owner an actual pos- 

 session is given to the auctioneer and his servants by the owner, not merely 

 an authority to sell. I have said a possession coupled with an interest; 

 but an auctioneer has also a sjiecial property in him with a lien for the 

 charges of the sale, the commission with the auction duty, which he is bound 

 to pay." (AVilson, Justice, in Williams v. MiUington, I.H., Bl. 81, 1788.) 



Where a horse is sold at a repository on the condition that, if it does 

 not answer the warranty given with it, it may be returned within a certain 

 time, the auctioneer is statute-holder between the seller and purchaser, and 

 the money paid by the latter does not rest in the seller until such time 

 has elapsed. The purchase-money, until such time has elapsed, should 

 be retained by the auctioneer. A misdescription of horse jjut up for sale 

 by the auctioneer will vitiate a sale, and may even amount to fraud, 

 as if a horse be wrongly described as the property of a certain gentle- 

 man deceased, or as belonging to a certain stud. Where, too, it is 

 expressed in the conditions of the sale that " the highest bidder shall 

 be the purchaser, and if a dispute arise, it shall be decided by a majority 

 of the persons present ", it would be fraudulent for the seller to bid either 

 himself or by an agent. 



Puffing also is illegal, and if the buyer finds it out, the seller cannot 

 recover the price {Pihnore v. Hood, 5 Bingham, N.C. 97, 1838). This 

 point was fully considered in Crowder ^\ Austin (3 Bingham, 368, 1826). 

 This action was brought to recover the price of a horse sold at Aldridge's 

 Repository, where one of the conditions of sale was that each horse should 

 be sold to the highest bidder. The seller had employed his groom to run 

 up the price of the horse, and the buyer, having discovered this, refused to 

 take it. The plaintiff was non-suited. Auctioneers have also a lien (or 

 claim) upon horses sold by them for their commission and charges {Robin- 

 son V. Butter, 4 E. v. B. 954, 1855; Williams v. MiUington, v. supra; 

 and Grice v. Kenrick, L.E. 5, 2 B. 340, 1870). Where fraudulent repre- 

 sentations are put into the mouth of the auctioneer, the seller cannot 

 recover the price (Murray v. Mann, 2 Exch. 538, 1848). 



