
    *J. F. Entz, Survivor, vs. Mills & Beach.
    An auctioneer’s clerk is not such an agent, within the statute of frauds, whose entry will bind the party; unless the authority of the clerk (to make the entry) lias been specially obtained from the party who is to be bound by his act, or he has afterwards assented to be charged by it.
    Before Earle, J., at Charleston, May Term, 1839.
    This was an action of assumpsit to recover the price of sundry articles sold by Entz & Williams, of whom the plaintiff is survivor, at auction, on the 13th July, 1838, and charged to the defendants.
    It was an extensive sale made by Trenholm, Smith & McCormick. The entries in their sales book were made by their clerk, who was offered as a witness to prove them. The sale was conducted in the following manner : McCormick was the auctioneer. When an article was knocked down, the name of the purchaser was repeated aloud, with the article and the price, to the clerk, who was within ten or twelve feet, and he made the entry in the book. One of the defendants was present, and did purchase. The clerk supposed he must have heard their names repeated as the purchasers of the particular articles set down to them at these prices; but the clerk received no directions from him to make the entries, nor did either of the auctioneers actually see the entries made. McCormick examined the books the next day, and found them correct. The defendant who made the purchases, when the bill was rendered made no objection to the prices, but refused to take the articles, except nine casks of wine, and thirty-seven casks of oil, which they accepted and offered to pay for. Each purchase made a separate entry. Those accepted were lots 21 and 69.
    The entries in the sales book were rejected as evidence, and the plaintiff had a verdict for the price of the wine and oil.
    The plaintiff moves for a new trial, on the ground of error, in excluding the books.
    GROUNDS OF APPEAL.
    1 That in the case of a sale at auction, where the purchasers knew at the time of the sale, that they were named publicly by the auctioneer, as the bidder ; and also the articles they had bought, and the prices paid for them ; and the auctioneer, at the time and place of sale, announced to his clerk the names of such persons as purchasers, and the articles purchased, and the prices — who at the same time and place made an entry of the same in the sales book of the auctioneer — that this was a sufficient memorandum to take the sale out of the statute of frauds.
    2. That where a purchaser is present at a sale by auction, and hears his name announced as a buyer, with the articles bought, and the prices for the *same, and is subsequently furnished with a bill of parcels of the articles sold, and makes no objection to the bill of parcels, this is a sufficient recoguition of the correctness of the original memorandum made by the clerk of the auctioneer, and of which the bill of parcels was a copy, to authorize such original memorandum to be used in evidence, and to take the sale from the operation of the statute.
    3. That when a person is present at a sale by auction, and is announced by the auctioneer as a purchaser; and also, at the same time, the articles sold, and the prices, are announced, and an entry or memorandum to that effect, and including these particulars, is made by the clerk of the auctioneer, and the person announced as the purchaser does not dissent from the assertion made that he was the purchaser of such articles for such prices, that this is a sufficient authority for the clerk to make a memorandum of such a sale, so as to charge such person as a purchaser, and to take the sale from the operation of the statute of frauds. -
    4. That where a purchaser is furnished with a bill of the articles sold, and the prices at which the same were sold, and takes one of several parcels which had been sold, and all of which are enumerated in the bill furnished, and does not deny the sale, nor the prices affixed to the articles, but only objects to the quality of the articles sold — this is a sufficient recognition of a previous contract, to authorize the introduction in evidence of the original memorandum made by the clerk of the auctioneer, and of which the bill furnished was a copy.
    5. That where an auctioneer publicly announces an individual as a purchaser, and such person is present, and does not dissent, nor deny the assertion made of his being the purchaser; and at the same time the auctioneer names the articles sold, and the prices, and none of these are denied ; and, subsequently, a bill of parcels is rendered to such person, to which he does not object, and accepts one of the several parcels charged to him in the said bill; this is a sufficient confirmation of a memorandum made at the time and place of sale by the clerk of the auctioneer, of the name of the purchaser, the articles sold, and the prices, and of which the bill of parcels was a copy — so as to authorize the introduction in evidence of such memorandum, as sufficient to charge him as a purchaser, and to take the case from the statute of frauds.
    Appeal determined at Charleston, February, 1840.
   Curia, per

Earle, J.

The fundamental principle which pervades the whole law of agency, is, that an agent cannot delegate his authority; he cannot appoint a sub-agent; he cannot substitute another in his place. Where the Courts in England and in this country held an auctioneer, who made a sale, to be the agent of both the vendor and purchaser, it was perhaps* a departure from the letter of the statute, but justified by the necessities of business. To hold an entry by the clerk of an auctioneer to be a compliance with the statute, would be virtually a repeal. If it had not been seriously argued, I should have considered the point too plain to be disputed. We understand the practice is general in Charleston, for the clerks to make the entries. How such a mistake has arisen, it would be needless to conjecture. It has been ruled otherwise, both here and in England. In Meadows vs. Meadows, the very point was made and decided, that an entry by the clerk of the auctioneer was not a compliance with the statute, (3 McCord, 458,) and the case of Coles vs. Trecothick, (9 Ves, 251,) there referred to, decides the same point, that whatever may be the usage of trade, an auctioneer’s clerk is not an agent within the statute, whose signature will bind the party, unless the authority of the latter has been specially obtained, or he has assented to it afterwards. The authority of Lord Eldon is always of the highest consideration, and having been relied on to sustain the case cited from McCord, it would be of no avail to cite other cases. In Meadows vs. Meadows, the sale was made in North Carolina, but their statute is the same.

And is it not obvious, upon the reason of the thing, that the clerk is not the authorized agent of the buyer ? The sale is made by the auctioneer. He is the mutual agent of the parties, and the very ground on which his entry is held to bind the purchaser, is, that it is made upon the spot, at the time, and under the confidence inspired by his official character. Such an entry is supposed to be made in the presence of the parties: for it is only upon that ground that he can be considered the agent of the purchaser. When the clerk is twenty yards, or twenty feet, distant at the time the article is knocked down, and makes the entry from the mouth of the auctioneer, what security has the auctioneer that the entry is according to the fact ? It would be as reasonable to hold that an entry made the next day, or a week after, would be binding.

It was argued, and the suggestion was countenanced by one of the Court, that the vendue Act has made a change on that subject. I think clearly otherwise. That Act seems to have been framed in conformity with the decisions of the Courts on the statute of frauds. Conceding that the auctioneer is the agent, and may bind the purchaser, it has provided that he shall keep books, in which shall be entered all sales, whether public or private. It would seem to follow, as an obvious conclusion, that the entries which are required to be made, and which, when proved, according to Carter vs. Bennett, (Ril. Ca. 287,) are enough to enable the auctioneer to recover either the price of the article sold, or the difference between a first and second sale, must be made by the auctioneer himself. He is the person licensed, who gives bond, and takes an oath ; and the legal effect of his entry to bind the parties arises from his official character, and the ^confidence reposed in him by both. A clerk known to neither is entitled to no such confidence, and his entry, not made in the presence of the purchaser, and with his assent, is not a compliance with the statute, and does not bind.

See Cathcart vs. Kernaghan, 5 Strob., 130; Wolfe vs. Sharpe, 10 Rich., 63; Christie vs. Simpson, 1 Rich., 410; 3 McC., 458. An.

Magralh, for the motion. Frost, contra.

The motion to set aside the verdict is refused.

Gantt, Butler and Richardson, JJ., concurred. 
      
       3 Hill, 254. An.
      
     