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SALES AT AUCTION.

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naked power, that expires with his death, is one that must be I. CH. 15. executed in his name and as his act, not as B's, as a power of Art. 4. attorney to execute a deed in A's name and as bis act : 4. A Con. power given to B, as collateral security for a debt, cannot be revoked by A, but it dies with B. It is not a power coupled with an interest in a legal sense.

Willes' R. 565, Wynne v. Thomas.; see ch. 135. a. 6, several cases ; see Hunt, &c. 8 Wheat. 174-216.

Bill in equity against Reed, an attorney and counsellor at 3 Mason, 405– law, for fraudulent misconduct in respect to the plt. his client. 428. Williams Held, an attorney is bound to disclose to his client, if he has any adverse retainer, which may affect his own judgment or his client's interest; but the concealment of the fact is not a necessary presumption of fraud.

In a regular complaint against an attorney the charges must 9 Wheat. 529be on oath. This he may waive, and without it the court may proceed at his request. The testimony to support the charges must be on oath.

33. Money collected by an attorney for his client must be 6 Cowen, 596. demanded before the client can move for an attachment for the non payment of it. See ch. 9. a. 18, many cases of principal and agent often involving the powers and duties of attornies. So factors, ch. 30. Vol. 1.

531.

CHAPTER XVI.

ACTION OF ASSUMPSIT. SALES AT AUCTION.

$ 4. Con. Same principle as to an under or by-bidder. Art. 1. 4 Har. & Mc H. 281–283. But contra, 2 Cons. Rep. 821, Con. holding he is a fraud on the fair bidder, if not made known; and that the highest fair bidder is not held to complete the contract; but he is held if real fair bidders alone run up the price, though an under bidder be employed, known only to the auctioneer, for in such case the puffer's bid has no injurious effect.

§ 15. Held, the sales of goods at auction are within the 2 Barn. & 29th of Car. 2. ch. 3. s. 17. If the conditions of sales be an- Cress. 945. nexed to the catalogue then the auctioneer's putting down the bidder's name opposite to the lot in the catalogue bid off by him, is sufficient to take the case out of the statute.

$ 16. Fraud in a sale at auction. Mortgaged premises with power to sell were put up for sale, at auction, pursuant to notice. The assignee of the mortgagee acted as auctioneer. While the premises were up, the actioneer saw the dest. coming, who had purchased under the mortgagor, and the auctioneer immediately knocked down the premises to his brother, as the highest bidder, for half the mortgage debt. This precluded

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ASSUMPSIT.

2 Barn. &

I. CH. 16. competition. Held, the deed given to the brother was fraudu

Art. 1. lent and void. If the vendor of goods fraudulently conceal Con. material facts (at auction or private sale) as to them, to the in

jury of the vendee, an action is maintainable to recover damaJackson u. ges; but the fraud must be clearly proved and cannot be preCraft, 18

sumed. Jobns. R. 110. ART. 2.

§ 10. A sale of goods at auction is within the stat. of fraud, Con.

1788, c. 16. s. 3. 2 Pick. R. 64. See the word Auction in the index. Quære, if the English doubts have not been con

fined to sales of real estate principally ? Cres. 511-514,

§ 11. A fact for the jury. Assumpsit for goods sold at aucPhillips v. Bis- tion. Plea, non assumpsit. By the conditions, the buyer was tolli.

to pay thirty per cent. on the price, on being declared the highest bidder, and the residue before the goods were removed. A lot was knocked down to the deft., as the highest bidder, and delivered to him immediately. After it had remained in his hands three or four minutes, he stated he had been mistaken in the price and refused to keep it. No part of the price had been paid. Held, it was a question of fact for the jury whether there had been a delivery by the seller and the actual acceptance by the buyer, intended by both parties to have the effect of transferring the right of possession from one to the other.

The deft. was a foreigner, and but imperfectly understood the English language. A person interpreted for him and said to the plt. the deft. understood the price at which the earrings was knocked down to him was fortyeight guineas, (not eightyeight the plt. understood). If Assyrian garnets, they were worth only £50; if rubies, eightyeight guineas. Cited 1 East, 192 (is cited ch. 32. a. 10. s. 2.) i Moore, 326 ; 5 B. & A. 855.

CHAPTER XVII.

Art. 1.

Con.

ACTION OF ASSUMPSIT. BAILMENTS. $ 3. Con. But liable if he keeps them with less care than he keeps his own. 3 Mason, 132–136.

Where money in a bag has been deposited merely for safety, no action lies for it, until after a special demand; and if the depositer die, the common advertisement of his administrator of his appointment, and calling on all indebted to the estate to pay, is not a special demand.

§ 2. B for years keeps a mill in Virginia to turn the wheat of himself and neighbours into flour. He receives their wheat ' to be ground' all into a common heap, and for each five bushels returns to them a barrel of flour, out of a common stock so arising,—A, sensible of this course, sends one hundred bushels of wheat to the mill,' to be ground,' and so to receive flour

ART. 3.
Con.

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143.

In the course of the business, the mill, wheat, and four are all J. Ch. 17. burnt by accident, and no fault in B, the loss of the one hun- Art. 3. dred bushels of wheat is A's, it being his property not sold to Con. B. The court of appeals said, ' by the terms of this custom, this wheat is to be returned to the farmers collectively taken. These circumstances completely negative the idea of a sale or exchange of the wheat, which would carry with it the transmutation of property.' Rand. 3–11 Slaughter v. Green & al.; like case, Seymour v. Brown, 19 Johns. Ř. 44.

The bailee's action against a trespasser is a bar to the bailor's 2 N. H. Rep. action for the same cause.

§ 12. Neither pawnee or mortgagee of a chattel is liable to ART. 4. attachment or to the trustee process. See ch. 112. a. 7. s. 20. Con.

§ 13. Pledge in equity returnable in like property. Feb. 1818, the defts. stock and exchange brokers, lent monies to the plt. and he pledged four hundred and thirty shares in the U. States Bank, as collateral security for his note, payable Jan. 20, 1819, and then if not paid they might sell the stock and account to him for the surplus, holding him responsible for any deficiency. During all the time the defts. had' shares of their own, standing in their names, and at their absolute disposal to an amount far exceeding said four hundred and thirty shares pledged by the plt., and not inarked or identified as his property, but blended with their shares, and they were always ready and able to transfer the four hundred and thirty shares to him on bis paying his note. Held, they were not bound to account to hiin for his stock at the highest price at which shares were sold by them at any time during the period; but that the like. number of shares held by them when the note became due were to be considered as the shares so pledged by the plt., and Nourse v. which the defts. were at liberty to sell, as by their agreement to 4 Johns. Ch.R. reimburse the amount of the note which remained unpaid.

$ 3. Where the profession of the bailee implies skill, then Art. 13. want of skill is imputable as gross neglect, Stanton v. Beil, 2 Con. Hawkes, 145; but a mandatory who receives no reward is liable only for fraud or gross neglect. Id. Freighters for hire on navigable rivers are viewed as common carriers and subject to 10 Murphy, their liabilities. The words of a bill of lading the dangers of +17. the river only excepted,' signify the natural accidents incident to that navigation, not such as might be avoided by the exercise of that discretion and foresight expected from persons in such employment. This case respects rivers in North Carolina.

§ 4. In an action against a carrier by water, the value of the goods at the port of reception is ihe proper measure of damages, unless a different rule be required by some fault on the part of the carrier. 4 Hayw. of Tennessee, 114, Edmunson 0. Baxter.

VOL. IX.

490.-7 do. 69.

7

I. Ch. 17. $ 2. Remarks. In the essay of Sir William Jones, on the law Art. 19. of bailments, republished in New York in 1828, with American Con. notes, and from the third London edition, there is collected to

gether various branches of the law under this one word "bailment.' This American edition is swelled to an octavo of 260 full pages, or more.

The few pages in this chapter, in comparison, may seem a mere sketch ; but carefully examining this octavo, I find but very little to be added in this abridgment, because, in this 17th chapter, is included only the first principles of bailment, and a few cases to illustrate them. The detail and cases, and some principles have been placed in many other chapters, as coming under various branches of business very properly, especially agent and principal, chapters 9, a. 18, and ch. 59 &c.; Agisiment ch. 10; Bills of Lading, ch. 21 ; Carriers, ch. 23; Consignments, ch. 25; Factors, ch. 30; Freight, ch. 33; Innkeepers, ch. 37; Liens, ch. 44; Partnerships, ch. 52; Postoffice, ch. 54. Ferries, ch. 67; Negligence, ch. 73; Trover, ch. 77; in these, and in other chapters, may be found all the material cases on the subject.

3. Jones makes but five divisions in bailment. This is not material ; on the principles of the bailee's responsibility, there may be but three divisions ; his gross, ordinary, and slight negligence, if we consult the branches of business and trusts, wherein there is bailment, that is, wherein one man is entrusted with the possession of another's property, without ever being the owner of it, to return or to dispose of it to others.

\ 4. Jones says, “ bailment is a delivery of goods in trust on a contract, expressed or implied, that the trust shall be duly executed, and the goods redelivered, as soon as the time or use for which they were bailed, shall have elapsed, or be performed.' He speaks only of redelivery, but he states, and correctly, numerous cases in which there is no redelivery; as where the carrier by land or water, the bailee, carries the goods from the vendor to the vendee, consignor to the consignee, &c. He then defines his five kinds of bailments, as deposit, mandate, lending for use, pledging, and letting for hire.

He defines the bailees' three kinds of neglect thus : 'ordinary neglect, is the omission of that care which every man of common prudence, and capable of governing a family, takes of his own concerns.' 2. Gross neglect is the want of that care which every man of common sense,

how inattentive soever, takes of his own property. 3. Slight neglect is omission of that dili

gence which every circumspect and thoughtful person uses in sepp. 117, 118. curing his own goods and chattels. "It follows, he says, as

axioms following from natural reason, good morals, and sound policy: 1. 'A bailee who derives no benefit from his undertaking, is responsible only for gross neglect, as the depositary:

p. 117.

p. 118.

2. À bailee, who alone receives benefit from the bailment, is I. Ch. 17. responsible for slight neglect,' as the borrower gratis : 3. When Art. 19. the bailment is beneficial to both parties, the bailee must answer Con. for ordinary neglect.' These principals and axioms agree exactly with those before stated, taken from the books at large.

§ 5. A few more axioms and maxims may be here brought together, found scattered in this volume, and in this abridgment. Every bailee is answerable for actual fraud, and no stipulation can excuse it.

Gross neglect is a violation of good faith.

A naked contract is one made without consideration, and thereon no action lies, unless the bailee enter on its execution.

Bailee is answerable for his ordinary neglect; as a pawnee; a hirer of a thing; a workman for hire; a carrier for hire; a letter to hire of his care and attention.

For slight neglect; a borrower for use; one engaging truly and officiously, to keep or carry another's goods, though without reward.

Bailee liable in all events, as if he keep the goods after lawfully demanded, whether hirer, pawnee, or borrower; or after the time stipulated; or departs from the agreement in the use; so is a pawnee or depositary, if he use the thing pawned or deposited, except as above.

Bailee where answerable, though robbed by irresistible force ; the common carrier is, except by public enemies, as to whom he can have no remedy over, is a principle of public policy; innkeeper is a common carrier.

Jones's general remark. 'Every bailee is responsible for a loss by accident or force, however inevitable or irresistible, if it be occasioned by that degree of negligence, for which the nature of the contract makes him liable generally.' _Though these principles have been in each edition of Jones's Essay, they deserve particular notice, because retained in so many editions, and after so much examination by himself and others.

$ 6. When, pages 85, &c., he speaks of locatio, or hiring of a thing, and thinks the English law demands of the hirer no more than ordinary diligence,' he means the common hirer, and not the common carrier, made liable in all cases, except where excused by the act of God and of public enemies. See ch. 23, a. 1, s. 8. As to the few late decisions on this subject, they are not, except in two or three instances, brought into this chapter, but placed in the chapters before named, especially as to carriers, factors, liens, &c.

57. We may here, in confirmation of Jones's opinion against that of Holt, cite a late, N. York case, Miller v. Salisbury; 13 Johns. R. 211; where decided, if a horse be hired to go on a journey, and during the due prosecution of the journey, without

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