having employed the warehouseman of the seller as their agent, he filled up some of the casks out of the two last, but left the bungs out in order to enable the custom-house officer to gauge, but before he could fill up the rest, a fire consumed the whole in the warehouse within the 30 days. It was held, that the property passed to the buyers in all the casks which were filled up, because nothing further remained to be done to them by the seller; for it was the business of the buyers to get them gauged, without which they could not have been removed; and the act of the warehouseman in leaving them unbunged after filling them up, which was for the purpose of the gauging, must be taken to have been done by him as agent for the buyers, whose concern the gauging was. But that the property in the casks not filled up, remained in the sellers, at whose risk they continued, and that the purchaser was therefore entitled to recover the money which he had paid for the casks, which at the time of the fire remained at the risk of the seller.a a Rugg v. Minett, 11 East, 210. See Hanson v. Meyer, 6 East, 614. OTHER, AND OF THE REMEDIES TO ENFORCE THE SECT. Of the Auctioneer's Right of Action sta recover Payment for Goods sold. Fombroton AN auctioneer has such an interest in goods sin trusted to him for the purpose of sale, as will enable him to maintain an action in his own names against a purchaser, for goods sold and delivered; and he may maintain such action, though the goods are sold on the premises of the owner, and it is known whose property they are.3 1. But if an auctioneer sells goods and delivers them without demanding payment, and without giving notice to the purchaser of any lien or claim which he has upon them, and the buyer without such notice settles with the owner, the auctioneer cannot maintain an action against the purchaser for the price.b And although the auctioneer represents the goods to be the property of A. and the purchaser settles with A. as the owner, yet if the goods were in fact the property of B. the auctioneer cannot maintain an action against the purchaser, for the price for which they were sold. Thus in Coppin v. Walker," which was an action brought by an auctioneer who had been employed to sell by auction the goods of Appleton, in Appleton's house, and he printed and published a catalogue, entitling the goods as Appleton's goods, and he entered them all at the Excise-office without distinction as the goods of Appleton. The defendant was the holder of a bill of exchange for 31. 11s. accepted by Appleton, due and unpaid; he attended the sale, purchased articles amounting to 231. 12s. 8d., obtained the goods, and before any demand made by the plaintiff, went to Appleton, who set off the amount thereof against the bill, , and paid the defendant the balance, who thereupon gave up the bill. Certain of the articles which he had purchased, to the value of 177. 158. were, however, the goods of Appleby, and had been included in the sale by the plaintiff, without the privity of Appleton, or of the defendant, who supposed that he was buying the goods of Appleton. The plaintiff insisted upon payment to himself for all the goods, which the defendant refused. The Jury, under the direction of Wood, B. found a verdict for the plaintiff, for 237. 12s. 8d. with liberty t a Ubi supra. to the defendant to move to enter a nonsuit, or reduce the verdict to 17. 5s. the amount of Appleby's goods. And upon a motion for that purpose, Dallas, C. J. said, "This is an action brought by an auctioneer to recover the value of goods, which are now stated in part to belong to Appleby, but which he sold as the goods of Appleton. It is said he had a special property in the goods intrusted to him to sell. He proves to be the agent of Appleton and Appleby, and his sale belongs in part to each but it is represented in the catalogue as wholly consisting of the goods of Appleton, and is so entered at the Excise-office, and the goods are sold on Appleton's premises. The defendant is induced probably by this representation to become a purchaser, that he may have the opportunity to set off the price of the goods which he buys against the bill which he held, payable by Appleton to him. If he is deprived of effecting this object, this misrepresentation must operate as a fraud with respect to him he buys the goods as Appleton's, on the representation of the plaintiff that they are such; he takes them away by the consent of the plaintiff (without which he could not take them), without any demand of the price being made by the plaintiff, or any statement that Appleton was indebted to the plaintiff for commission, or auction duty, or any thing else. They were therefore delivered as the goods of Appleton, and as such, the defendant had a right to treat and pay for them : the plaintiff has concluded himself by his own act.” SECT. 2.-Of the Vendee's Right of Set-off in Action by Auctioneer. HAVING shewn that an auctioneer may maintain an action in his own name against a purchaser for the price of goods sold, the next subject of inquiry seems to be, what right the purchaser has to set off in such action a debt due to himself, either from the vendor or from the auctioneer. Where an auctioneer sells goods, and delivers them without receiving payment, it has been held,* that by such delivery he parts with his lien, and that in an action brought against the purchaser in the name of the auctioneer, the purchaser may set off against the price a debt due to him from the owner of the goods. And where an auctioneer sells the goods of A. in a sale of the goods of B., this is such a fraud as will entitle a purchaser of the goods of A., in an action brought against him by the auctioneer for the price of such goods, to set off a debt due to him from B.b ----- SECT. 3. Of the Vendee's Right to recover back the Deposit from the Auctioneer. WHERE a deposit is paid on a purchase, and the vendor fails to comply with the conditions of sale, the purchaser may, we have seen, either affirm the agreement by bringing an action for the non |