the goods had not been supplied, and gave up the indemnity: but he was held liable upon his undertaking, notwithstanding the want of an answer to his letter; the right could not be divested even by a wilful neglect of the creditor, which did not exist in the case before the Court, the merchant having gone abroad on his necessary business (s). 2 Heury Blackstone, 613, Ox. ley v. Young. If the party guaranteeing become a bankrupt, and if he be discharged from his liability upon a bill to which he has made himself a party by way of security, he is 3 Starkie, 148, Bottomley v. also released from the payment of costs incurred in an Wilson. action against the principal. We have seen, that at law, unless there be a special covenant, the inattention of a creditor to enforce a demand will not discharge the security; that person is, See Fell, p. 183, however, not without his remedy. For it seems that where the autho by applying to a court of equity he may compel a cre- subject may be ditor to proceed against the principal. 66 "As to the case of principal and surety; in general "cases, I never understood that, as between the obligee " and the surety, there was an obligation of active diligence against the principal. If the obligee begins "to sue the principal, and afterwards gives him time, there the surety has the benefit of it. But the surety " is a guarantee; and it is his business to see whether "the principal pays, and not that of a creditor. The "holder of the security, therefore, in general cases, may lay hold of the surety; and, till very lately, even "in circumstances where the surety would not have had "the same benefit that the creditor would. But in "late cases, provided there was no risk, delay or expense, the surety has a right to call upon the creditor (s) However, upon wilful neglect, perhaps an action on the case might have been had against the merchant. See 2 Henry Blackstone, 616, by Eyre, chief justice. rities upon this found. 6 Vesey, juu. 734, by Lord Eldon. 2 Barn Alderson, 51, 6 Barnewall & Cresswell, 689, "to do the most he can for his benefit; and the latter cases have gone farther. It is now clear that if the " surety deposits the money, and agrees that the cre"ditor shall be at no expense, he may compel the "creditor to prove under a commission of bankruptcy, "and give the benefit of an assignment in that way." By 6 Geo. 4, c. 16, s. 52 (the new bankrupt act), a surety, being such at the issuing of the commission, who has paid the debt, or any part, although the payment may have been made after the commission, may prove his demand in respect of such payment. If the creditor has proved, the security is entitled to stand in his place, provided that he have not had notice of the bankruptcy when he entered into his undertaking to be so answerable (†). Next, as to the remedies which sureties possess against their principals. It is clear, that the guarantor who pays the debtor, may maintain an action against the original debtor för money so paid to his use. And so a surety may sue on a bill which he has taken up. But where one of several makers of a joint and several promissory note, gave his bond as a security on the note falling due, and commenced an action against the other parties for contr bution, no money having been paid on the bond before action brought, the Court held, that the plaintiff could not recover for money paid, there not having been any actual payment, and, in order to have made this a virtu payment, the defendant must have been shown to have agreed to the transaction. But it is a general principle, that co-sureties shall con Browne ". Lee. tribute. Supposing some of these persons to be insolvent, you cannot at law sue the solvent sureties for more than the aliquot part for which they were originally liable, bet a larger proportion may be recovered in a court of equity 2 Bosanquet & Puller, 269, by Lord Eldon. (t) See 1 Bingham, 413, Watkins v. Flanagan. by the person who satisfies the debt. In effect, the rule in equity is, to allow contribution against the solvent guarantors in a fair proportion, after striking out those Fell, p. 212. who are insolvent. It has been decided, that the obligation to pay a debt being entered into under separate instruments, does not in any away prevent the demand Id. 215. for contribution. But where a second bond was given. as an additional security, to be void if the debtor or his first surety discharged the sum due, the Lord Chancellor was of opinion, that the former surety, who paid the debt, could not ask contribution at the hands of the second obligor, considering that no co-suretyship existed, as the one party was only liable in case the others failed to pay. And this is different from a case where one co-surety gave a further security without the knowledge of the rest, and which he satisfied: here, as all were equally liable, contribution was allowed. 14 Vesey, jun. 160, Craythorne v. Swinburne. Dunn v. Slee. 1 Moore, 2, Fairs and Mar kets. Comyn on Contracts, p. 166. Croke, James, 68; Cases tem.. Hardwicke, 349. Croke, James, 68, Taylor v. If property be disposed of in an open fair or market, Sale of goods in however irregularly the vendor may have become possessed of it, a bonâ fide purchaser shall not be deprived of the benefit of his bargain. According to the custom of London, every day, except Sunday, is market-day, and the time is betwixt sun-rising and sun-setting, but the sale must be of such goods as the owner professes to deal in. A sale of goods in a shop in the Strand, or elsewhere out of London, does not alter the property, nor even in London, if the felon be convicted upon the owner's evidence. The same privilege may exist by custom in other great cities, as Bristol. "Even out of London great allow "ances should be made, analogous to the custom there in 66 cases where the transaction has been fair." A person who has lost his goods may take them wherever he can find them, and his property in them is not divested if they have been sold out of market overt. Chambers. 12 Modern, 521, Anonymous. Ibid. by Holt, C.. Comyn, p. 167. Cases tempore Hardwicke, 350, by Lord Hardwicke. 2 Campb. 335, See Comyn, p. 167. Comyn, ibid. So that where some lead was sent to a wharf in London, and the wharfinger disposed of it without any authority from the former owner, a bonâ fide purchaser was not suffered to retain it in an action of trover brought by the owner, for " a wharf could not be considered, even "in London, as a market overt for the articles brought "there." And again, upon a fair and reasonable principle, if the vendee know that the seller has no right to the goods he is dealing with, the property is not altered though the bargain take place in a public market. By 1 James 1, c. 21, the sale of goods to any pawnbroker in London, or within two miles, without lawful ar thority for so doing, shall not alter the property; for the broker carries on a clandestine trade, and he is therefore an exception to the general rule. It is not necessary, in order to maintain trover against the pawnbroker, that the owners of goods should tender the duplicates, for they claim by a title paramount to that of the pawnor; such tender is requisite where the Peet v. Baxter. plaintiffs claim in privity with the person who pledges. A sale in market overt will not bind the King. 1 Starkie, 472, Sale of Goods by Public Auction. The inclination of the Courts at the present time is, that a sale by auction should be conducted in the most open and public manner possible; that there should be no reserve on the part of the seller, and no collusion on the part of the purchasers. Puffing is therefore illegal, according to a late case, even though there be only one puffer; and it was decided there, that the recognized practice of auctions to employ such persons to bid upon the sale of horses, could not be sustained. A firmly established principle upon this subject is, that the party who bids may retract at any time before the hammer is down. An auctioneer dwelt on a bid ding; the defendant said, "Why do you dwell? you will "not get more." The auctioneer said, that the goods he had to sell weighed so much; the defendant asked whether the weight would be warranted, and upon receiving an answer in the negative, retracted his bidding, and the Court held that he had clearly a right do so, and that a bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. 3 Term Rep. 148, Payne v. 76, Jones v. Cave; 13 Price, Nunney. And honesty on the vendee's part is essentially requisite at an auction. On the sale of a barge, the plaintiff, a bidder, said he had a claim against the late owner of it, by whom he had been ill used, and this declaration prevented a competition. The seller, who had taken this barge in execution, indemnified the auctioneer, and 3 Broderip & he refused to take the plaintiff's bidding, and on an action Bingham, 116 being brought, the Court said that such a sale could not hams. be supported. Another rule respecting auctions is, that verbal declarations by an auctioneer cannot be suffered to control the printed conditions of sale. Fuller v. Abra. Premises were stated in the conditions to be free from all incumbrances; it turned out that there was a charge of 177. per annum, and the purchaser refused to complete his contract. An action on the case being brought against him, the plaintiffs proposed to show that the auctioneer had publicly represented the incumbrance complained of from his pulpit; but this endeavour was frustrated, it being the opinion of the Court that to admit such evidence would be to open a door to fraud and inconvenience. The printed particulars of a sale pasted up in the public sale-room under the box of the auc- 3 Espinasse, tioneer, are considered sufficient legal notice to pur- Aldridge. chasers. Certain acts of parliament have afforded relief to persons becoming liable to auction duties without any resulting benefit. As for example, where it turns out Henry Blacknis v. Erhart. stone, 289, Gun 271, Mesnard v. |