the trustees evidence, and consequently that the latter provision in the 134th section applies to all cases where an order has been made by the trustees for the appointment or election of a trustee. Consequently, evidence of Haywood's having acted as a trustee, and of the order, or a copy of the order for his appointment, was sufficient proof his being a trustee.

Ac

TAUNTON, J. I also think that the rule should be made absolute, and my opinion proceeds simply upon the construction of the 134th section of the general turnpike act. I abstain from giving any opinion on the point of estoppel, in consequence of what fell from the Court in Fairtitle dem. Mytton v. Gilbert, 2 T. R. 169. I think that the 134th section was intended to make the different modes of proof there pointed out sufficient evidence of the party's being a trustee, and to render unnecessary any ulterior inquiry as to his qualification. cording to the argument for the defendant, after the proof stated in the latter part of that clause were given, it would be necessary to shew a regular appointment. If that were so, the clause would be a dead letter. The words "in case he or they was or were appointed or elected by the trustees," may be construed *142] to apply to a case where there has been an appointment or election de facto. Then Haywood's having acted for nine years was primâ facie evidence of his having been appointed a trustee, and the having been so appointed and elected will satisfy the words of the clause: and there was sufficient proof of his having been appointed de facto.

PATTESON, J. The words "in case he or they was or were appointed or elected by the trustees," apply to the case where the party is not named trustee in the local act, but appointed after the passing of it. The order for appointment is, in the very clause, distinguished by the legislature from the appointment itself. If the local act, in this case, had said that the order for the appointment of a trustee should be under the hands and seals of five trustees, there would be more weight in the argument for the defendant.

DENMAN, C. J. If the meaning of the words were that contended for by the defendant, the proof of an actual legal appointment could never be dispensed with. The construction would be most rigid, whereas I think it ought to be liberal, in order to further the manifest intention of the legislature to dispense with the formal proof which might otherwise be required. Rule absolute.

*143]

*BIRD v. BOULTER. Jan. 17.

In assumpsit by an auctioneer against a purchaser, for goods sold, an entry in the sale book by the auctioneer's clerk, who attended the sale, and, as each lot was knocked down, named the purchaser aloud, and on a sign of assent from him, made a note accordingly in the book, is a memorandum in writing by an agent lawfully authorized, within sect. 17, of the statute of frauds. For the clerk is not identified with the auctioneer, (who sues,) and in the business which he performs, of entering the names, &c., he is impliedly authorized by the persons attending the sale, to be their agent.

ASSUMPSIT for goods sold and delivered, and goods bargained and sold. Plea, the general issue. At the trial before Littledale, J. at the Hereford Spring assizes, 1832, it appeared that the goods in question (wheat, the property of one Smith) were a lot sold at an auction, and knocked down to the defendant by the plaintiff, who was the auctioneer, at a price exceeding 107. The course pursued at this sale was, that the parties as usual signified their biddings to the auctioneer, who repeated them aloud; and when the hammer fell, one Pitt, who attended as the auctioneer's clerk, called out the name of the purchaser, and, if the party assented, made an entry accordingly in the sale-book. In the present instance, the auctioneer having named the defendant as the purchaser, Pitt said to him, "Mr. Boulter, it is your wheat ;" the defendant nodded, and Pitt made the entry in his sight, he being then within the distance of three yards. The question was, whether a note or memorandum of the bargain had been made, pursuant to 29 Car. 2, c. 3, s. 17, by the party to be charged, or his agent thereunto lawfully author

ized. A verdict was taken for the plaintiff, and leave given to move to enter a nonsuit. A rule nisi having been obtained for that purpose.

The Solicitor General (with whom was Whateley) now shewed cause. It is still, perhaps, vexata quæstio, whether sales by auction are within the seventeenth section of the statute of frauds at all;(a) but it is not necessary [*444 to discuss that point. The objection taken on the other side was, that, under the seventeeth section, one contracting party cannot constitute the other his agent, to sign the memorandum (which, it was said, was the effect of the present transaction ;) and Wright v. Dannah, 2 Campb. 203, and Farebrother v. Simmons, 5 B. & A. 333, were cited. In the first of those cases, Lord Ellenborough held, that the agent who signed the memorandum must be a third person, and not one of the contracting parties; and, in the other, Abbott, C. J. referring to Wright v. Dannah, held, that an auctioneer's signature was not sufficient, where he sued as one of the parties to the contract. But the doctrine of these cases is not borne out by the words of the statute; and, at common law, there is nothing to prevent one contracting party from being the agent of the other; an obligor, for instance, from giving an obligee a power of attorney to execute a bond for him; a lessee from executing a lease, as attorney of the lessor; a party from accepting a bill by procuration, payable to his own order; assuming the authority in each case to be complete, which would be matter of evidence. It was admitted here, that Smith, the owner of the goods, might have maintained the action. But the defendant is either bound by the contract originally, or not bound: if he is bound, it does not matter by whom the action is brought, so that it is a party entitled to enforce the contract by action; aud this was the view taken by the learned Judge at the trial. But there is no need to contest the cases cited. Here the memorandum was not signed by the auctioneer, who sues, but by another party, *Pitt, who signed the contract by the defendant's immediate authority. If it is rightly held, that a contracting party can[*445 not be the agent to sign under section 17, that restriction will surely not be extended to his clerk. The Court here called upon

Ludlow, Serjt. and Justice, contrà. To decide in favour of the plaintiff, the Court must overrule Farebrother v. Simmons, 5 B. & A. 333. It is not disputed, that, if Smith had sued, an entry by the auctioneer would have been a sufficient memorandum to bind the purchaser; so also would an entry by his clerk. In Henderson v. Barnewall, 1 Y. & J. 389, Hullock, B. observed, that "an auctioneer's clerk, who writes down the name of the buyer in his presence, is the agent of both parties." But then, whether the auctioneer or the clerk sign, the same objection arises, that the memorandum is signed by one of the contracting parties, who is plaintiff in the suit; for the clerk's signature is that of his master. [LITTLEDALE, J. Then you would say, that an auctioneer can, in no case, bring an action like this in his own name.] He is not obliged to sue; the vendor may. If the auctioneer makes himself the plaintiff, he must take the consequent disadvantages. [TAUNTON, J. May not the vendor have two agents; one to extol the commodity, the other to do the mechanical work of making the memorandum in the sale-book?] The latter is an essential part of the auctioneer's duty; the clerk, in doing it, represents him; and it was proved in this case, that Pitt was the clerk and servant of Bird. His receipt for money would have been that of Bird, and *would have charged Bird [*446 and not Pitt himself, Edden v. Read, 3 Camp. 339. The auctioneer, in this case, on knocking down the lot, says, "It is Mr. Boulter's" (the defendant); and the clerk writes; that is, in effect, that the auctioneer writes by the hand of his clerk. If not, where is the memorandum by an agent lawfully authorized? for there was no attempt at the trial to establish a distinct agency in the clerk. And if the signature is to be made available as that of the auctioneer given by the hand of his clerk, Wright v. Dannah, 2 Camp, 203, and Farebrother v.

(a) But see Kenworthy v. Schofield, 2 B. & C. 945.

Simmons, 5 B. & A. 333, apply. [PATTESON, J. In Blore v. Sutton, 3 Mer. 237; (see Coles v. Trecothick, 9 Ves. jun. 235); the signature of an agent's clerk acting for and under the direction of the agent, in a case within sect. 4 of the statute, was held not to be a memorandum by the authorized agent of the principal.] The dictum of Hullock B. in Henderson v. Barnewall, 1 Y. & J. 389, contradicts this. [PATTESON, J. That was not called for by the case before the Court.] In a sale by auction the knocking down constitutes the contract; the entry is a requisite superadded by the statute, but it is not a distinct transaction. [LITTLEDALE, J. May it not be said that the clerk is constituted a deputy by all the room?] He goes to the sale in a definite character, hired to act for a particular master; he could not sue any other person for work and labour; and the auctioneer might sue for labour done by his clerk. The clerk acts as a mere automaton under the direction of the auctioneer. DENMAN, C. J. I think this case is distinguishable from Wright v. Dannah, 2 Camp. 203, and Farebrother v. Simmons, *5 B. & A. 333; and it *447] appears to me that the clerk was not acting merely as an automaton, but as a person known to all engaged in the sale, and employed by any who told him to put down his name. Without, therefore, interfering with the cases that have been cited, I think this rule must be discharged.

LITTLEDALE, J. With respect to the case relied upon in support of the rule, there is certainly a difficulty in saying that a purchaser shall be bound by a contract or not, as the action is brought by one party or another. It is, indeed, irregular that the real buyer or real seller should make the other party his agent to sign a memorandum under the statute; but when that is done through a third person the objection is removed. An auctioneer is enabled by law to sue the purchaser, but, according to the rule insisted upon for the defendant, an action of this kind could not be maintained by the auctioneer. I think that a clerk employed as Pitt was in this case, must, in an action brought by the auctioneer, be considered as his agent for the purpose of taking down the names, and also as the agent of the several persons in the room for the same purpose, and to prevent the necessity of each purchaser coming to the table to make the entry for himself.

TAUNTON, J. I very much agree with my Brother Littledale as to the difficulty in Farebrother v. Simmons, 5 B. & A. 333. But there is no necessity to overrule that case. The Chief Justice there says, in the close of his judg-. ment, "Wright . Dannah fortifies the conclusion at which I have arrived, viz., *448] that the agent contemplated *by the legislature, who is to bind a defendant by his signature, must be some third person, and not the other contracting party on the record." It is a sufficient distinction between that case and this, that in the former the auctioneer, whose signature was relied upon, was the party suing; here the signature is by a third person. I would, however, go farther than this. Under the circumstances, I think Pitt may be considered to have been the agent of the vendor. It is not necessary to suppose that the vendor rested a particular confidence in the auctioneer for the purpose of putting down the names in the sale-book. He may be taken to have constituted that person his agent for the making of such entries, whom the auctioneer might choose to appoint. If so, Pitt was agent for the vendor, and also for the persons in the room who saw him acting as he did under the auctioneer, and by their acquiescence constituted him their agent for the business which they saw him performing. At all events he is a third person, and not a contracting party on the record.

PATTESON, J. It is not necessary here to overrule Farebrother v. Simmons, 5 B. & A. 333. It may be correct to say, as there laid down, that the signature must be by a third person, and not by a contracting party on the record. Here it was so. According to the evidence, Pitt was seen by all the parties at the sale making the entries in the sale-book; it was inconvenient that each purchaser

should come to the table for that purpose, and, by nodding as the names were called, they authorized him to act as he did.

Rule discharged.

*HENSWORTH v. FOWKES. Jan. 22.

[*449

Declaration ("in a plea of trespass on the case,") stated that the defendant, intending to injure the plaintiff in his good name, and to cause his dwelling-house to be searched for stolen goods, and to procure him to be imprisoned, went before a justice, and falsely, maliciously, and without probable cause, charged that certain specified goods of defendant had been feloniously stolen, and that he suspected that the said goods were concealed in the plaintiff's dwelling-house; and upon such charge the defendant procured the justice to grant a warrant, authorizing a constable, with necessary assistance, to enter the plaintiff's house to search for the said goods; and the defendant, with other persons, caused and procured the dwelling-house of the plaintiff to be searched and rummaged for the said goods by such persons, and the door of such house and a pantry there to be broken to pieces, and the plaintiff and his family to be disturbed in possession, and his goods to be carried away. The general conclusion was, that by means of the premises, the plaintiff was injured in his good name and trade, put to expense, and hindered in his business. A count in trover was added:

Held, on general demurrer, by Taunton and Patteson, Js., Littledale, J., dissentiente, that the acts of violence alleged to have been committed in the house, appeared sufficiently by the declaration to have been acts done in pursuance of the warrant, and in consequence of the charge made by the defendant, and that they were stated as mere matter of aggravation; and consequently that the whole count containing this statement

was in case.

DECLARATION stated that the plaintiff complained of the defendant being in the custody, &c., of a plea of trespass on the case; it then alleged that the plaintiff had not ever been guilty, or until, &c., been suspected, of felony, or of having stolen goods concealed upon his premises, by means whereof he had deservedly obtained the good opinion, &c., and was acquiring great profits in his trade of a butcher, yet the defendant contriving and maliciously intending to injure the plaintiff in his good name, &c., and to cause his dwelling-house to be searched for stolen goods, and also to cause him to be imprisoned and detained in prison for a long time, and to oppress and ruin him in his business and otherwise, theretofore, to wit on the 3d of May, 1832, at, &c., went and appeared before one C. G. M., a justice of the peace for the county of Leicester, and falsely and maliciously, and without any reasonable or probable cause whatsoever, charged and alleged that certain cart-wheels, the property of the defendant, had by some person or persons unknown been feloniously stolen, and that he, the defendant, had probable cause to suspect, and did suspect, that the said goods were [*450 concealed in the dwelling-house of the plaintiff, and upon such charge the defendant then and there falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the said justice to make and grant his warrant under his hand and seal, thereby authorizing and requiring a certain constable, to whom the warrant was directed, with necessary assistance, to enter in the day time into the said dwelling-house of the plaintiff, there to search for the said goods, and if the same should be found on such search, to bring them, and also the body of the plaintiff, before the said C. G. M., &c.; and the said defendant, with other persons, then and there falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the dwelling-house of the plaintiff to be searched and rummaged for the said goods by the said defendant(a) and the said other persons, and the door of the said dwelling-house, of great value, to wit, &c., to be with force and arms, &c., broken to pieces, damaged, and spoiled, and also a certain pantry of and belonging to the said dwelling-house, of great value, to wit, &c., to be demolished

(a) So in the declaration: see p. 459, post.

and broken; and also then and there caused and procured the plaintiff and his family to be greatly disturbed and disquieted in the possession of his said dwelling-house, and divers goods and chattels, to wit, certain cart wheels of the plaintiff, of the value, &c., to be taken and carried away therefrom; and the said defendant further contriving, &c., on the 5th of May, 1832, falsely and maliciously, and without any reasonable or probable cause, procured the said warrant to be *451] *indorsed by G. B. H., a justice of the borough of Leicester, and thereby caused and procured the said G. B. H. to authorise the execution of the warrant in the said borough, and falsely and maliciously, and without any reasonable or probable cause whatsoever, caused and procured the plaintiff to be arrested and kept in custody, and to be afterwards carried and conveyed in custody before two justices of the borough, to be examined touching the said supposed crime; whereas, in truth and in fact, there were no stolen goods whatsoever in or upon the said premises of the plaintiff, nor was the plaintiff guilty of any such supposed offence; and the said last-mentioned justices, having heard and considered all that the defendant could say against the plaintiff touching the said supposed offence, adjudged that the plaintiff was not guilty thereof, and caused him to be acquitted and discharged of the same, and the defendant had not further prosecuted his said complaint, but had abandoned the same, and the said prosecution was wholly determined. There were other counts not materially varying from the first, and there was the following general conclusion :-"By means of which said several premises the plaintiff hath been and is greatly injured in his said credit and reputation, and brought into public scandal, &c., with and amongst all his neighbours and other good and worthy subjects of this kingdom, and divers of those neighbours and subjects to whom his innocence in the premises was unknown, have, on occasion of the premises, suspected and believed that he has been and is guilty of felony, and of having had stolen goods concealed on his promises, and also the plaintiff has by means of the premises, *452] suffered great anxiety and pain of body and mind, and *has laid out 1007.

in defending himself in the premises, and in the manifestation of his innocence, and has been hindered from following his lawful business for the space of two days, and has been injured in his trade and otherwise." There was also a count in trover. To this declaration the defendant demurred generally.

White in support of the demurrer. The allegations in the first count of the declaration, that the defendant caused and procured the dwelling-house of the plaintiff to be searched, the door to be broken, &c., and a pantry to be demolished, and the plaintiff to be disturbed and disquieted in his possession, and the goods and chattels of the plaintiff to be taken and carried away, and that he caused the plaintiff to be arrested and kept in custody, are substantive charges of direct and immediate acts of trespass committed by the defendant; they are improperly joined with the rest of the first count, which is in case, and with the count in trover. Trespass and case cannot be joined. The distinction between case for a malicious prosecution, and trespass for false imprisonment, is pointed out by Lord Mansfield and Lord Loughborough in Johnstone v. Sutton, 1 T. R. 544, and Ashhurst and Buller, Js., in Morgan v. Hughes, 2. T. R. 231. The declaration here does not allege that when the defendant caused the plaintiff's dwelling-house to be entered and searched, the parties entering and searching acted under or in obedience to the warrant. The several acts there charged are wholly unconnected with the preceding matter. It is not even alleged that the constable was present, or that the acts were done in his aid. That being so, the *453] *injuries alleged to have been committed after the application for a warrant, are manifestly trespasses. Bracegirdle v. Orford, 2 M. & S. 77, shews, that trespass for breaking and entering the plaintiff's dwelling-house, may be well laid to have been done under a false charge and assertion that the plaintiff had stolen property in her house, per quod she was injured in her credit, &c.; for then the false charge is laid only as matter of aggravation; and the jury may give damages for the trespass as aggravated by such false charge.