possession forcibly, but proceeded in the treaty afterwards till he finally refused to agree to the purchase. On a bill filed by the vendor, the purchase money was decreed to be paid with four per cent. interest from the time it ought; but an inquiry was directed as to what ought to have been the compensation at that time for the part not freehold; and it was ordered, that that with the outgoings should be deducted."

And where property has been sold by auction, and after the sale, and before a conveyance is executed, is destroyed by fire or otherwise deteriorated in value, the purchaser will notwithstanding be decreed to perform his contract.

In Paine v. Meller," which was a bill filed for a specific performance of an agreement entered into by the defendant for the purchase of certain houses, which was resisted on (amongst other grounds) the ground that the houses had subsequent to the sale been destroyed by fire. The Lord Chancellor said, "As to the mere effect of the accident itself no solid objection can be founded upon that simply, for if the party by the contract has become in equity the owner of the premises they are his to all intents and purposes. They are vendible as his; chargeable as his; capable of being incumbered as his; they may be devised as his; they may be assets; and they would descend to his heirs."

* Calcraft v. Roebuck, 1 Ves. Jr. |

221.

b 6 Ves. Jr. 349.

See also Poole v. Shergold, 2

A specific performance will not be decreed, even with compensation, where there has been a great intentional misrepresentation, although it may be provided by the conditions of sale, that in case of "any error or misstatement" a compensation shall be made."

Nor will a performance be decreed against a purchaser, where it appears that at the time of the sale the vendor affirmed that the estate had been valued by persons of judgment at a greater sum than it actually was, if the purchaser was influenced by such misrepresentation."

A court of equity will not generally entertain a bill for a specific performance of contracts for chattels, or which relate to merchandize, but leave it to the courts of law where the remedy is more expeditious; but where the agreement is not final, but to be made complete by subsequent acts, a bill to carry it into execution will sometimes be allowed.c

SECT. 5. Of the Vendor's Right to recover Goods wrongfully sold or disposed of by Auctioneer.

WHERE property is intrusted to an auctioneer for the purpose of sale, a transfer by him agreeable to that purpose, and according to the usual course

Bro. C. C. 118. Revell ". Hussey,

2 Ball & Beatt. 280.

Harford v.

Purier, 1 Madd. 532.

a Stewart v. Alliston, 1 Mer. 26.
b Buxton v. Lister, 3 Atk. 383.
C Ibid.

of trade, or his express commission, will convey a complete title to the holder. But a delivery for a different purpose, or in a manner not according to the usual course of trade, or made in a manner not authorized by his commission, will not pass any property in the thing delivered, which may therefore be reclaimed by the owner.

Therefore if an auctioneer, under a general authority to sell, disposes of property upon credit, where the usage of the trade is to sell for ready money only, no contract is thereby created between the owner and the vendee, and the owner may recover the value of the property so disposed of in an action of trover.a

If an auctioneer to whom goods are intrusted for the purpose of sale pawn them, the owner may recover the value of them in an action of trover against the pawnee.

And in an action of trover, brought by the owner of goods against a pawnee under such circumstances, the pawnee cannot take advantage of any right which the agent had, as between himself and such owner, to retain them. For as this right is personal it cannot be transferred to a third person by any tortious act; and therefore it is not necessary, in order to maintain the action, that the owner should tender to the pawnee the amount which was due to the agent.

a 12 Mod. 514.

b Hartop v. Hoare, 3 Atk. 44. M'Combie v. Davies, 7 East, 5.

But it seems that such action cannot be maintained, where one who has a lien upon goods delivers them to a third person, as a security, with notice of his lien, and appoints him to retain the possession as his servant, for the purpose of preserving such lien."

In an action of trover, brought to recover goods unwarrantably pledged, it is not necessary to prove a demand and refusal, as the taking of another's property, by the delivery of one who has no authority to deliver it, is in itself tortious.

Thus, in the case of M'Combie v. Davies," Lord Ellenborough said, Certainly, a man is guilty of a conversion who takes any property by way of assignment from another who has no authority to dispose of it; for what is that but assisting that other in carrying his wrongful act into effect."

SECT. 6. Of the Vendor's Right, on non-fulfilment of Contract by Vendee, to retain the Deposit, and to recover Damages from the Vendee for loss on Resale.

WE have seen that a clause is usually inserted in the conditions of sale, providing, that if the purchase money is not paid within the time limited, the deposit money shall be forfeited, the property

a M'Combie v. Davies, 7 East, 5.

b 6 East, 540.

resold, and any loss occasioned by such resale made good by the purchaser."

If this condition were omitted, there is no doubt that the vendor would be entitled to retain the deposit if the contract was not carried into execution, and the default rested entirely with the purchaser; and that the vendor would also be entitled, in an action against the purchaser, to recover any damage which he might sustain by such default beyond the sum deposited.

a Ante 39.