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1823.

paid over by him to the vendor. It afterwards turned out Gray

that the estate was charged with an annuity, and the vendor V.

being unable to make out a good title, the plaintiff refused GUTTERIDGE.

to complete the purchase, and brought this action to recover the deposit. It was urged on the part of the defendant, that as he had paid over the deposit to the vendor immediately upon receiving it, without having received any notice from the plaintiff to retain it, and before any defect of title was discovered, the action could not be maintained. The Lord Chief Justice, however, overruled the objection, and the plaintiff had a verdict.

Follitt now moved for a rule nisi to enter a nonsuit, contending that under these circumstances the action was not maintainable against the defendant. The plaintiff's proper remedy is against the vendor, and not against the auctioneer. The auctioneer was the known agent of the vendor, and had paid over the deposit to his principal, before any breach of the conditions of sale had been committed, and before he had received any notice to the contrary from the plaintiff. He, therefore, is not liable. [Bayley, J. He had no right to pay over the deposit at all, until it was ascertained whether the vendor could make out a good title; he was the agent of both parties, and ought to have retained the money for the security of both, until the purchase was completed.] That would undoubtedly have been his duty, if he had received a notice to that effect from the purchaser, or if he had in any way been cognizant of the vendor's defect of title; but, in the absence of both those circumstances, it is submitted, that he was at liberty to pay over the deposit to the vendor, and is not liable to refund it to the purchaser. Hardacre v. Stewart (a), and Edwards v. Hodding (l), seem, in principle, to support this argument. In the first of those cases it was held, that if a person employed as an auctioneer in the sale of any property, has notice that what he is about to sell, does not belong to his principul, and yet

(a) 5 Esp. N. P. C. 103. (6) 5 Taunt. 815; 1 Marsh. 377.

1828.

continues to sell, he is personally liable in an action for the produce of the sale; and in the latter, that an auctioneer

GRAY receiving money as a deposit on the sale of an estate by auction, knowing that there is a defect in the vendor's title, Gutteridge. is answerable to the purchaser for the deposit, though he may have paid it over to the vendor; but the decision in both seems to have proceeded upon the ground of notice having been given to the auctioneer, which distinguishes those cases from the present. So, in Lee v. Munn (a), where the purchaser of an estate by public auction deposited a sum with the auctioneer as part of the purchase money, until the vendor made out a good title according to the conditions of sale; it was held, in an action to recover the deposit from the auctioneer, that he was not liable for interest, although nearly four years had elapsed from the time of the sale, on the ground that no demand had been made on him for the repayment of the deposit. In Burrough v. Skinner (b), the defendant, an auctioneer, had sold the plaintiff an interest in land, in respect of which the plaintiff had paid him a deposit. Afterwards, upon discovery of an objection to the title, and also of some circumstances which ought to have been disclosed at the sale, the plaintiff renounced the contract, and brought an action to recover the deposit. After verdict for the plaintiff, and motion for a new trial, the Court were of opinion that the action lay against the auctioneer. But the first reason they assigned for that opinion was, that the money had not been paid over to the principal; and the second, that if it had been, yet the objection appeared to have been made before the money was paid over. Now, in both these ruspects, the present case is distinguishable from that, and therefore cannot be governed by it. The Court, undoubtedly, in that case, went on to say, that the auctioneer was a stakeholder, a mere depository, and ought not to part with the deposit, till the sale was finished and completed, and it appeared in the event to whom the money properly belonged; but it

(a) 8 Taunt. 45; 1 J. B. Moore, 481. (6) 5 Burr. 2639.

1828.

may be doubted bow far that doctrine can be upheld. If

the auctioneer is a stakeholder, it seems to follow that he GRAY

0. is not to be considered the agent of both parties; Edwards GUTTERIDGE.

v, Hodding (a); and therefore that he is not liable in a case like this. In that view of the case, an auctioneer would stand in the same situation as any other person who has received a deposit from one party and paid it over to another; and against such a person it is clear that an action like this would not lie, Horsfall v. Handley (6); where it was held that an action for money bad and received was not maintainable to recover money paid to a churchwarden for burial dues, which he had paid over to the treasurer of the trustees of a chapel, before the commencement of the action. Suppose an auctioneer receives the deposit upon a sale, and becomes insolvent, the loss would clearly fall upon the vendor; and if so, it follows that with reference to the deposit the auctioneer is exclusively the agent of the vendor, because if he was only a stakeholder, no action would lie under such circumstances by the purchaser against the vendor to recover the deposit.

Lord Tenterden, C. J.-I think there is no ground for disturbing the verdict in this case. The defendant sold the estate, and signed the contract of sale. Assuming him, in the first instance, to have been exclusively the agent

of the vendor, still it is quite clear that he, like any other agent, had power, if he chose, to bind himself as a principal; and it seems to me that he has done so, for the coutract which he signed states that he acknowledges to have sold the estate, and that he agrees to complete such sale, agreeably to the conditions of sale. Such being the language used by the defendant, I consider this contract as one made between the plaintiff and defendant as principals, and that the terms of the contract not being complied with, the defendant is liable to refund to the plaintiff the deposit wbich he received from him. But, independently of this view of

(a) 5 Taunt. 815; 1 Marsh. 377. (6) 8 Taunt. 136; 2 J. B. Moore, 5.

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1828.

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the case, I am of opinion, upon the authority of Burrough v. Skinner (a), that the defendant ought not to have parted

GRAY with the deposit, until the sale was completed, and it appeared to whom the money belonged. I think it was his GUTTERIDGE. duty to keep the money until the sale was completed, without any notice from the plaintiff to that effect; that he committed a wrongful act in paying the money over, and therefore that he is liable to make it good to the plaintiff in this action.

The other Judges concurred,

Rule refused.

(a) 5 Burr. 2639.

Ex

parte GOURLAY. CAMPBELL moved for a writ of habeas corpus to A warrant of

SBH. 00: bring up the body of Mr. Robert Gourlay, for the purpose by one justice of his being bailed, he having been some years ago com- of the peace, mitted to the House of Correction in Cold Bath Fields, Geo. 3, c. 94, by a justice of the peace, under the authority of the statute s. 3, stating

that “ A. had 59 & 40 Geo. 3, c. 94, s, 5 (6), as a dangerous person, sus- been disco

vered and ap(6) Which is in these words:- as a dangerous person, suspected prehended un“ And for the better prevention of to be insane, such cause of commit- der circumcrimes being committed by persons

ment being plainly expressed in the stances that

denoted a deinsane, be it further enacted, that warrant, the person so committed if any person shall be discovered

shall not be bailed except by two mind, and a

rangement of and apprehended under circum. justices of the peace, one whereof purpose of stances that denote a derangement shall be the justice who has issued committing a

crime (that is of mind, and a purpose of commit- such warrant, or by the Court of ting some crime, for which, if com- General Quarter Sessions, or by sault and

to say, an asmitted, such person would be lia- one of the judges of his Majesty's breach of the ble to be indicted, and any of his Courts in Westmiuster Hall, or by peace), for

which, if comMajesty's justices of the peace, the lord chancellor, the lord keepbefore whom such person may be

mitted, he er, or the commissioners of the

would be liabrought, shall think fit to issue a

ble to be inwarrant for committing him or her

dicted, and

that it appeared to the justice that he ought to issue a warrant for committing him as a dangerous person, suspected to be insane,” sufficiently “expresses the cause of commitinent," within the meaning of the statute.

great seal.”

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pected to be insane. He produced the warrant of com-
mitment, which was in the following words:-
“ To the Governor of the House of Correction for the

county of Middlesex, or his deputy.
Whereas Robert Gourlay hath been discovered and ap-
prehended under circumstances that denote a derangement
of mind, and a purpose of committing a crime (that is to
say, an assault and breach of the peace), for which, if com-
mitted, he would be liable to be indicted; and the said
Robert Gourlay being brought before me, one of his Ma.
jesty's justices of the peace in and for the said county, and
it appearing to me that I ought to issue a warrant for
committing him as a dangerous person, suspected to be
insane; these are therefore to command you and each of
you to receive into your custody the body of the said Robert
Gjurlay, herewith sent, as a dangerous person, suspected
to be insane, and him safely to keep in your custody until
he shall be bailed as directed by the statute in that case
made and provided, or until he shall be discharged by due
course of law; and for so doing this shall be your sufficient
warrant.

Given under my hand and seal this 25th day of June, 1824.

Thomas Halls.(L. S.)

Campbell.— The warrant is bad; for it does not “plainly express the cause of commitment,” in the manner required by the act of parliament. It does not state in detail the circumstances under which Mr. Gourlay was apprehended, and therefore does not lay before the Court any means of judging whether he is a fit person to be bailed or not. The power vested in magistrates by this section of the statute is a formidable, if not a dangerous power; and one which the Court will take care shall be exercised only in cases which come strictly within both the letter and the spirit of the law. It was doubtless with this view that the legislature cautiously introduced the stipulation that the cause of commitment should be plainly expressed in the

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