KEPOSITORIES AND AUCTIONS. 37 



bound by a sale to a bond fide purchaser, although made 

 ■without his express consent (l). 



Where a horse is sold at a repository, the possession is Auctioneer's 

 in the auctioneer, and it is he who makes the contract. If possession. 

 the horse should be stolen he may maintain an indictment, 

 and he has such a special property as to maintain an action 

 against the buyer for goods sold and delivered (m), but not 

 in a case where the right of a third person intervenes, and 

 is established (w). But where, as in the north of England, 

 there is a sale by auction of horses and cattle on the owner's 

 premises, it is doubtful whether the auctioneer has such an 

 interest in them as to recover the price (o). 



An auctioneer can set up the Jus tertii, if he defends the An auctioneer 

 action upon the right and authority of the third person, to l^^^^^^j^^ 

 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 {p). 



An auctioneer may interplead where he has sold goods, Interpleader 

 and the proceeds of the sale are claimed by a third by auctioneer. 

 party {q) ; 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 (r). But where the 

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

 interplead. In the case of Wright v. Freeman (rr) 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 plain- 

 tiff, who demanded to have back the money he had paid 

 for the purchase, and this being refused, he brought an 



{1} See Pichering v. Bmk, 15 {q) Best v. Hayes, 32 L. J., Ex. 



East, 38, 45; 13 E. E. 364. 129. 



(?k) Williams Y. Millington, 1 (r) Ibid., per Martin, B. In 



H. Bla. 85 ; 2 E. E. 724 ; Robinson this case the Court of Exchequer 



T. ButUr, 24 L. J., Q. B. 250. refused to follow the decision in 



(«) Dickemon v. Naul, 4 B. & Ad. Chancery in Mitchell v. Sat/ne (2 



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



(o) See per Wilson, J., Williams r. that an auctioneer, in such a case, 



Millington, lB..'B\a..S6; 2 E.E.724. could not file a bill of interpleader. 



(p) Middle V. Bond, 6 B. & S. (rr) 48 L. J., C. P. 276 ; 40 



225 ; 34 L. J., Q,. B. 137. L. T., N. S. 134 ; ibid. 358— C.A. 



