(p) Maclean r. Dunn, 4 Bing. 722.

(q) Thus in Hubert v. Turner, 4 Scott, N. R. 486, an agreement was drawn by the defendants' agent which recited in the usual way the names of the contracting parties, and at the end were these words, "as witness our hands;" but it was never in fact signed. Held, that it was not sufficient to bind the defendants. And see supra, n. (f). Taylor v. Merrill, 55 111. 52; Rutenberg r. Main, 47 Cal. 213.

(r) Wright r. Dannah, 2 Camp. 203; Raynor r. Linthorne, 2 C. & P. 124; Shar-man v. Brandt, L.R.6Q. B. 720; Adams v. Scales, 1 Baxter, 337. See Murphy v. Boece, L. R. 10 Ex. 126; Johnson v. Buck, 6 Vroom, 338. In Farehrother v. Simmons, 5 B. & Ald. 333, where an auctioneer wrote down the defendant's name, by his authority opposite to the lot purchased, it was held, that in an action brought in the name of the auctioneer, the entry in such book was not sufficient to take the case out of the statute. And Abbott, C. J., said: "The question is, whether the writing down the defendant's name by the plaintiff, with the authority of the defendant, be in law a signing by the defendants agent. In general, an auctioneer may be considered as the agent and witness of both parties. But the difficulty arises, in this case, from the auctioneer suing as one of the contracting parties. The case of Wright v. Dannah, seems to me to be in point, and fortifies the conclusion at which I have arrived, namely, 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 upon the record." And in Coleman v. Garrigues, 18 Barb. 60, it was held, that a brother employed to make or close a bargain, for the sale of real estate, is not authorized to sign the name of his principal to a contract for the sale of real estate, so as to take it out of the statute of frauds. The court say, "An agent within the meaning of the statute of frauds, who can sign the name of the owner of land to a contract for its sale, is not one who has a mere authority to make a bargain for the sale; but one who is made the owner's agent to sign his name to the contract. That agency may be by parol, but it is not included in a mere authority to sell." But see Bird v. Boulter, 4 B. & Ad. 443, in which Farebrother v. Simmons is somewhat questioned.

(s) It was formerly questioned whether auction sales were within the provisions of the statute of frauds. See Simon v. Motivos. 1 W. Bl. 599; 3 Burr. 1921. But it is now well settled that they are. Hinde v. Whitehouse, 7 East, 558; Blag-den v. Brad bear, 12 Ves. 466; Kenworthy v. Schofield, 2 B. & C. 945; Brent v. Green, 6 Leigh, 16; Davis v. Rowell, 2 Pick. 64; Burke v. Haley, 2 Gilman, 614; White v. Crew, 16 Ga. 146. It was the doctrine of the early cases that the aucor broker's (t)l * may be for either. And for the purposes of the fourth and seventeenth sections, the agent may be tioneer's authority to sign for both vendor and purchaser was confined to sales of personal property. Stansfield v. Johnson, 1 Esp. 101; Buckmaster v. Harrop, 7 Ves. 341; Walker v. Constable, 1 B. & P. 306. But it is now well settled that he is to be regarded as the agent of both parties equally in sales of real and of personal property. Coles v. Trecothick, 9 Ves. 234, 249; Emmerson v. Heelis, 2 Taunt. 38; White v Proctor, 4 Taunt. 209; Ken-worthy v. Schofield, 2 B. & C. 945; McComb v. Wright, 4 Johns. Ch. 659; Morton v. Dean, 13 Met. 385; Adams v. McMillan, 7 Port. 73; Meadows v. Meadows, 3 McCord, 458; Doty v. Wilder, 15 111. 407; Cleaves v. Foss, 4 Greenl. 1; Alna v. Plummer, id. 248; Anderson v. Chick, Bailey, Eq. 118. The doctrine formerly prevailed, that sales of land by sheriffs, and by masters in chancery under decrees of the court, were not within the statute. Attorney-General v. Day, 1 Ves. 218; Blagden v. Brad bear, 12 Ves. 466; Tate v. Greenlee, 4 Dev. 149. But this also has been since overruled, and sales of this description are now put upon the same footing with other auction sales. Simonds v. Catlin, 2 Caines, 61; Jackson v Catlin, 2 Johns. 248; Ennis v. Walker, 3 Blackf. 472; Robinson v. Garth, 6 Ala. 204; Barney v. Patterson, 6 Harris & J. 182; Christie v. Simpson, I Rich. 407; Elfe v. Gadsden, 2 id 373; Evans v. Ashley, 8 Mo. 177; Alexander v. Merry, 9 id. 514. - It is to be borne in mind, that the rule stated in the text, that an auctioneer is to be considered the agent for both parties, rests upon a mere presumption of fact, which may be rebutted by the particular circumstances of the case. Thus, where a party, to whom money was due from the owner of goods sold by auction, agreed with the owner, before the auction, that the goods which he might purchase should be set against the debt, and he became the purchaser of goods, and was entered as such by the auctioneer, it was held, that he was not bound by the printed conditions of sale, which specified that purchasers should pay a part of the price at the time of the sale, and the rest on delivery. And Lord Denman said: "No doubt an auctioneer may be agent for both parties; but here the bargain was, that what the defendant should buy was to be set off against the legacy. We do not overrule the former cases; but we consider them inapplicable. The auctioneer is not ex vi termini agent for both parties; that depends upon the facts of the particular case"- The auctioneer's clerk is also regarded as the agent of both parties. Bird v Boulter, I Nev. & M. 313; Frost v. Hill, 3 Wend. 386; Smith v. Jones, 7 Leigh, 165; Hart v. Woods, 7 Blackf. 568. But see contra. Meadows v. Meadows, 3 M'Cord, 458; Entz v. Mills, McMullan, 453; Doty v. Wilder, 15 111. 407. As to what the memorandum of the auctioneer should be to satisfy the statute, see Knox v. King, 36 Ala. 367 , Peirce v. Corf, L. R. 9Q. B. 210; McBrayer v. Cohen, (Ky.) 18 S. W. Rep. 123; Riley v. Farnsworth, 115 Mass. 223; Mentz v. Newwitter, 122 N. Y. 491.

(t) Rucker v. Cammeyer, I Esp. 105; Hicks v. Hankin, 4 Esp. 114; Chapman v. Partridge, 5 Esp. 256; Hinde v. White-house, 7 East, 558; Hinckley v. Arey, 27 Me. 362. But the broker must be known by the party dealing with him to be a broker, acting in the capacity of broker, and not as principal. Shaw v Finney, 13 Met. 453. In that case, one Hathaway, a broker, whose business was to buy and sell fish, as well for himself as for others, was authorized by the plaintiffs to buy fish for them, and bargained with the defendant for a quantity of fish, intending to buy for the plaintiffs, but not intimating to the defendant that he was not buying for himself, and made the following written memorandum of the bargain: "October 21, 1846. F. agrees to sell H. his fare of fish, at $2.50 per quintal, as they lay, or to go on flakes one good day, at $2.62}; and to have the refusal of them until Friday evening, 23d instant." Hathaway gave notice to the defendant, before Friday evening, that he would take the fish at $2.62 1/2, they to be put on flakes one good day; the defendant refused to deliver the fish to Hathaway, and the plaintiffs brought this action against him for a breach of the contract. Held, that the case was within the statute of frauds, and that the action could not be maintained. And Wilde, J., said: "It is kept the note sent to him without objection until called upon to accept the goods, when he repudiated the contract, assigning for reason that the note Bent to him was not signed. It was held, that the defendant's conduct amounted to an admission that the broker had authority to make the contract for him, and consequently his signature bound the defendant, and that the signed entry in the broker's book was a sufficient memorandum of the bargain to satisfy the statute of frauds. Thompson v. Gardiner, I C. P. D. 777. - K.