
    M‘Mechen vs. The Mayor, &c. of Baltimore.
    Error to Baltimore County Court. This was an action of. debt, brought in the names of The Mayor and City 
      
      Council of Baltimore,, for the use of L. Hollingsworth and ,fl. S'. Williams, against the defendant, (now appellant,) on a bond, executed on the 10th of February 1803, by T. ■ Yales, Mechen, (the defendant,) and J, Walsh, in the penalty of 83000, with the following recital and condition. “Whereas the above bounded Thomas Yates hath obtained from the mayor a license of admission under the seal of the city of Baltimore, to use and exercise the trade and employment of auctioneer within the said city; and by an ordinance of the corporation of the said city persons obtaining such license are directed, before they take upon themselves the duties of said office, to give bond, to be approved by tire said mayor, for the faithful performance of the several trusts and duties required of them by the aforesaid ordinance. Now the condition of this obligation is such, that if the above bounded Thomas Yates, do and shall pay, and duly satisfy, all just claims that may be against him as auctioneer, and in all things well and faithfully perforin the several duties required of him by the ordinance, entitled, An ordinance for licensing and regulating auctions within the city of Baltimore, and precincts thereof, then this obligation to be void, else to be and remain in full force and virtue.” The declaration was in the usual form. The defendant pleaded, 1. General performance. 2. Thai Yates obtained his license as auctioneer before he had given bond. 3. That no license was granted to Yates after he had given bond. The plaintiffs replied to the first plea, averring a nonperformance, and setting out the ordinance of the 20th of February 1801. That Yates on the 10th ofFebruary 1803, after the makingofthe writing obligatory aforesaid, on his application to the mayor, obtained from him a license as auctioneer for the term of one year, and that he acted as such for one year. That Hollingsworth, and Williams, on the 15th of July 1803, delivered and entrusted to Yates, as auctioneer, certain goods and merchandize, to wit, four pipes of gin of the value of 8487 30, to be by him sold .as auctioneer, at auction, on their account, and for their use and benefit. That Fates did sell the said goods at auction for the sum of 8474 97, over and above his commission, &c. That Yates received the money which he had not paid over, &c. To the second plea there was a similar replication. — -that Yates did not obtain his license as auctioneer before he duly executed and delivered to the plaintiff» a bond, with security to the satisfaction of .the! mayor. To the third plea they replied, that after Yates had duly executed and delivered to the plaintiffs his bond with security, to the satisfaction of the mayor, the mayor granted to Yates a license, &c. Issue joined on the replication to the first plea. The defendant rejoined to the se» cond replication, that Yates never did, as auctioneer, sell the said goods, &c. belonging to the said Hollingsworth and Williams. To the third replication lie rejoined, protesting that the said goods vvére not delivered to Yales to be by him sold as auctioneer, but that the said Yates was requested by H. & W. to sell the said guods at private sale, and that he did, at their request, sell the said goods at private sale. The plaintiffs surrejoined to the rejoinder to the second replication, that Yates did sell the said goods at auction. Tssue joined. To the rejoinder to the third replication they surrejoined, protesting that the goods were delivered to Yales to be by him sold as auctioneer^ that they did not request him to sell the said goods at private sale. Issue joined.
    
      T Y executed to the Mayor, &c. a frondas auctioneer, •with M as his Mitpiv. under an ordinance requiring such bond to be executed before the obtaining a license as auctioneer, The license was granted to T Y before the bond whs given. After the license ami bond, Wand H*sent ccriain goods to T Y to be sold at auction, who sold the same, but did not pay over the proceeds to and H. There was no nrovisjon in the ordinance authorising such bonds to be sued for fije «se of individuals; but the Mayor gave general directions to the ngister to deliver copies of the auctioneer’s bond ro any person having claims against him as such, and a copy oí the bond was in pursuance of that order, delivered to W ami H, who brought suit thereon in the name of the Mayor, See. lor their use. against I) M, the surety therein — that they were entitled to recover. ,
    If goods are sent to an auctioneer, with directions to sell them at public auction, and ho sells then» at private sale, without authority, and does not pay over .the proceeds, his bond as auctioneer 1» liable,
    
      I. The plaintiffs at the trial, offered in evidence the bond declared upon; and proved that it was executed by the persons whose names were thereto subscribed; and also gave, in evidence, that a license was granted to Yales, as auctioneer, after the execution and delivery of the bond. They further proved, that Williams & Hollingsworth sent to Yates, after the execution, and delivery of his bond, and after the granting the said license, and before the end of a year thereafter, the goods and merchandise in the replications mentioned, to be sold at public auction, and that they were sold at public auction, and the sum of money in controversy was by him, the said Fates, received and not paid over by him to Williams & Rollings-worth. The plaintiffs further gave in evidence, that the mayor of the city of Baltimore had previously given general instructions to the register to deliver copies of the said bond to any person having claims against Fates, as auctioneer, and that the bond, upon which, this suit was instituted, was in pursuance of the said instruction, delivered to Williams & Hollingsworth. The defendant then prayed the opinion of the court, and their direction to the jury* that upon this evidence the action could not be sustained for the use of IT Hilaras & Bollings,worth. This direction the Court, T Nicholson, Ch. J. and Hollingsworth, A. J.l refused to give. The defendant excepted.
    2. Evidence Was then offered that the gin mentioned in the replications was sent to Tates, as auctioneer, to be sold' ■ at public auction, bat that he was instructed not to sell it for less than a certain price. That it was offered for sale several times at public auction, without bringing the price limited; and that afterwards Yates had an offer for it at private sale, to the amount of the limit, and that he then sold it, which was his usual and common course in cases of goods sent to him to sell, and that such course of business was well known to the merchants of Baltimore for many years. The defendant then prayed the court to instruct the jury, that if they believed these facts, the plaintiffs were not entitled to recover. Rut the court directed the jury, that if they believed the gin to have been sent to Tates to be sold by him at public auction, and that he sold it at private sale, without the authority of Williams & Hollingsworth, and did not pay over the proceeds, that it was a breach of the condition of his bond as auctioneer. The defendant excepted; and the verdict and judgment being against him, he brought the present writ of error.
    The cause was argued before Chase, Ch. J. and Buchanan, Earle, Johnson, and Martin, J.
    
      Martin and Pinkney', for the Plaintiff in error,
    contended, that an individual could in no case sue on a public bond, unless the law, under which the bond was taken, authorised such a suit; and that as the ordinance of the corporation of Baltimore of the 20th of February 1801, under which the bond upon which this action was brought was taken, contained no such provision, this suit could not be sustained. They referred to the acts of 1715, ch. 39, s. 39; ch. 46, s. 4, 7; 1716, ch. 1, s. 3, 5; 1729, ch. 24; 1742, ch. 10, s. 2, 3, 7; Feb. 1777, ch. 8, s. 6; 1784, ch. 61, s. 4; 1785, ch. 72, s. 2, 8, 9, 10; 1790, ch. 12; 1794, ch. 54; 1798, ch. 101, sub ch 3, s. 10, sub ch. 12, s. 4. Sterryton vs. Day, Styles, 18. Arlington vs. Merricke, 3 Saund. 412, 413, 414, 415, (and note.) The State, use of M‘Nielly vs. Wailes, 3 Harr. & M‘Hen. 241.
    
      
      Barper and Winder, for the Defendants in error,
    relied on M‘Mechen vs. The Mayor, &c. of Baltimore, 2 Harr. & Johns. 41.
    
   Tiro'Court,

on both bills of exceptions* fconcnrred. ift the opinions given by the court below.

JUDGMENT AFFIRMED.  