Young, 16 Johns. 1; Thompson v. Kelly, 101 Mass. 296; Beller v.Block, 19 Ark. 566; Flanegan v. Crull, 53 Ill. 352.

This right is more obvious, perhaps, where the auctioneer is unpaid, and has a lien on the price for his fees and disbursements; but it is not confined to such cases; for though he has been paid in full by the principal, he may still recover the price in his own name, unless the principal has done something to interfere with that right. The purchaser cannot object merely because the suit is brought by an agent: Minturn v. Main, 7 N. Y. 220. Though, of course, in such case the owner could sue and recover the whole price in his own name: Girard v. Taggart, 5 S. & R. 19.

This lien of the auctioneer for his unpaid fees and disbursements, is so strong, that if the buyer pays the whole price to the real owner, the auctioneer may still recover of him the amount of his unpaid fees, &c., in an action for the price: Robinson v. Rutter, 4 El. & Bl. 956; Johnson v. Buck, 35 N. J. L. 338.

If, however, the auctioneer has been fully paid, his right to recover the price in his own name is only prima facie; for, if the buyer and the real owner have made some agreement as to the mode of payment, or to offset a counter claim, proof of this would defeat an action by the auctioneer; for, if fully paid himself, he is suing only to enforce his principal's rights: Grice v. Kenrick, L. R., 5 Q. B. 340. So far as the cases of Coppin v. Walker, 7 Taunt. 237, and Coppin v. Craig, Id. 243, seem to lay down any different doctrine, they must be considered as somewhat modified. And see Iseberg v. Bowden, 8 Exch. 858.

If a bidder declines to give the name of the real buyer, he is personally liable to the auctioneer for the price: McComb v. Wright, 4 Johns. Ch. 659; Nat. Fire Ins. Co. v. Loomis, 11 Paige 431.

As to an auctioneer's right to sue for the price of real estate sold, it is quite different from that in sales of personal property. The auctioneer has no possession and apparent ownership of real estate, and the right to recover in his own name must depend on the terms and conditions of the sale. If the buyer has expressly agreed, or impliedly assented to pay the auctioneer in person, the action may be maintained, otherwise not: Cherry v. Anderson, 10 Ir. Rep. C. L. 204; Evans v. Evans, 3 Ad. & El. 132; Fisher v. Marsh, 6 B. & S. 411; Thompson v. Kelly, 101 Mass. 296.

For an auctioneer's right or interest in real estate he is selling,

or in fixtures attached thereto, is quite different from that in goods and chattels. He cannot maintain trespass in his own name for wrongfully removing such fixtures (Davis v. Danks, 3 Ex. 435) as he could for wrongfully removing personal property in his possession Tyler v. Freeman, 3 Cush. 261.

And even if employed to sell goods on the premises of the owner, he has not, prior to such sale, such an interest or right in the premises as to prevent the owner from countermanding his authority and ordering him to depart, and from ejecting him, if he refuses to leave. Taplin v. Florence, 10 C. B. 744, in which the subject was much considered.

AUCTIONEER'S LIABILITIES.-An auctioneer is ordinarily personally responsible to the buyer to fulfil the sale; at least when he declines to give the name of his principal: Mills v. Hunt, 17 Wend. 333; 20 Id. 431; Bush v. Cole, 28 N. Y. 261; Franklyn v. Lamond, 4 C. B. 637; Hanson v. Robedeau, Peake 120; Woolfe v. Horne, 2 Q. B. Div. 355.

But the disclosure of the principal's name, and other circumstances, may show that the contract is solely between the buyer and the owner, and that the remedy of the former is solely against the principal: Mainprice v. Westley, 6 B. & S. 420; Evans v. Evans, 3 Ad. & E. 132.

If the auctioneer expressly warrants the title or quality of the goods, it would seem the buyer's remedy, if done without the principal's sanction, is against the auctioneer in person: Dent v. McGrath, 3 Bush 175; Schell v. Stephens, 50 Mo. 375; Somers v. O'Donohue, 9 U. C. C. P. 208.

For it is at least questionable whether an auctioneer has authority, virtute officii, to bind the owner by an express warranty, in the absence of some general usage or custom to that effect: The Monte Allegre, 9 Wheat. 647; Upton v. Suffolk Mills, 11 Cush. 589: Blood v. French, 9 Gray 198, 199.

The auctioneer is, of course, personally liable to his principal for want of ordinary care and skill in conducting the sale: Maltby v. Christie, 1 Esp. 340; Kavanagh v. Cuthbert, 9 Ir. R. C. L. 136; Hibbert v. Bayley, 2 F. & F. 48; Cull v. Wakefield, 6 U. C. Q. B. 178. And having collected the proceeds is liable to an action for money had and received, deducting his commissions, and counter claims: Succession of Dowler, 29 La. Ann. 437; Harlow

v. Sparr, 15 Mo. 184; and cannot set up title to the goods in himself as a defence to such action: Osgood v. Nichols, 5 Gray 420. And see Hutchinson v. Gordon, 2 Harr. (Del.) 179.

But if the principal had been guilty of such fraud that the purchaser could recover back the money from the auctioneer, the latter is not liable to the owner for the amount, after notice from the purchaser not to pay it over: Stevens v. Legh, 2 C. L. R. 251; 22 Law T. R. 84 (1853).

An auctioneer selling property not belonging to his principal, is liable to the real owner for a conversion, though acting innocently: Hoffman v. Carow, 20 Wend. 21; affirmed on error 22 Wend. 285; Hills v. Snell, 104 Mass. 177; Davis v. Artingstall, 29 Weekly Reporter 137; Cochrane v. Rymill, 40 Law T. R. 744; Mercantile Bank v. Rymill, 44 Id. 307; having of course a remedy over against his employer: Adamson v. Jarvis, 12 Moore 241; 4 Bing. 66.

And if the real owner should recover the goods from the purchaser, the latter might refuse to pay for them; or if he had paid, recover back the amount, as on a failure of consideration: Dickenson v. Naule, 1 N. & M. 721; 4 B. & Ad. 638.

EDMUND H. BENNETT.

Boston, 1883.

RECENT ENGLISH DECISIONS.

Court of Appeal.

EX PARTE REYNOLDS.

A witness is not the sole judge whether a question put to him may tend to criminate him. To entitle a witness to the privilege of silence the court must see, from the circumstances of the case and the nature of the evidence which the witness is called upon to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer; but, if the fact of the witness being in danger he once made to appear, great latitude should be allowed him in judging for himself of the effect of any particular question.

LEDRU ROLLIN REYNOLDS was adjudicated a bankrupt on a petition filed in the London Bankruptcy Court on the 23d September 1881. On the 4th of December 1880, he had executed a post-nuptial settlement in favor of his wife and others, of which settlement his brother, George Kossuth Mazzini Reynolds, was one

of the trustees. On the 24th of January 1882, G. K. M. Reynolds was examined on oath before Mr. Registrar HAZLETT, by counsel for the trustee in bankruptcy, touching his knowledge of the bankrupt's property, and particularly with regard to the circumstances under which the settlement had been executed, and the property comprised in it. Various questions were put to the witness, the greater number of which the witness, by the advice of his counsel, declined to answer, on the ground that his answers might tend to criminate him. It was obvious that answers to some of the questions could not possibly have such a tendency.

The Registrar expressed an opinion that some of the questions were legal and proper questions; but, as the witness persisted in his refusal, a formal order was made by the registrar, which, after stating that the questions referred to in the transcript of the shorthand notes of the examination had been put, that the witness had refused to answer them on the ground that these answers might tend to criminate him, and that it appeared to the registrar that some of the questions were legal and proper questions and that the witness was bound to answer them, referred the further examination to the chief judge, with the view of rendering a special application to his lordship for the committal of the witness to answer the questions unnecessary, and directed the witness to attend before the chief judge on a certain day for such further examination.

The 20th of February was the day appointed for hearing the reference from the registrar, and on that day the chief judge, after reading the transcript and hearing counsel for the trustee and the witness, ordered that the witness "do answer all lawful questions put to him, and that the examination be referred back to the registrar for that purpose," and that the witness should attend the examination at his own expense, and pay the costs of the application. The witness appealed.

Horton Smith, Q. C., and Montagu Williams (Terrell with them), for the appellant.

Arthur Charles, Q. C., and F. C. Willis, for the trustee.

case.

JESSEL, M. R.-There are two questions to be decided in this One is of general importance; the other question arises on the circumstances of the particular case. The question of general importance is, whether, when a witness objects to answer a question

on the ground that the answer to the question put to him may criminate him or may tend to criminate him, the mere statement of the belief of the witness himself will be sufficient, or whether the judge is entitled to decide (not merely accepting the witness's statement that he believes it) whether the proposed question has really a tendency to criminate the witness, or might fairly be considered to have that tendency under all the circumstances of the case. Now, upon that, there are various dicta, and one express decision. I am quite aware that the express decision, being one of the Court of Queen's Bench, is not technically binding on this court; but at the same time it is a decision of the full Court of Queen's Bench, which was composed at that time of very eminent judges, and I need not say that I should differ from them with very great hesitation. That was in the case of Reg. v. Boyes. It was heard in the year 1861, and this very point, as I read that case, was not merely the subject of dicta, but clearly of decision. COCKBURN, C. J., gave judgment, and the present Lord BLACKBURN, and CROMPTON and HILL, JJ., concurred in that judgment. In the judgment given by the Lord Chief Justice he says this: "It was also contended that a bare possibility of legal peril was sufficient to entitle a witness to protection; nay, further, that the witness was the sole judge as to whether his evidence would bring him into danger of the law, and that the statement of his belief to that effect, not manifestly made mala fide, would be received as conclusive. With the latter of these propositions we are altogether unable to concur. Upon review of the authorities, we are clearly of opinion that the view of the law propounded by Lord WENSLEYDALE in Osborn v. London Dock Company, and acted upon by STEWART, V. C., in Sidebottom v. Adkins, is the correct one, and that, to entitle a party called as a witness to the privilege of silence, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer. Indeed, we quite agree that, if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question, there being no doubt, as observed by ALDERSON, B., in Osborn v. London Dock Company, that a question which might appear at first sight a very innocent one, might, by affording a link in a chain of evidence, become the