#### Commissioners of Raleigh, to the use of Bond, v. Holloway and others.

From Wake;

Where an act of assembly gives to an auctioneer .an exclusive right of selling goods at auction, except in particular cases, the law, independent of any contract between the parties, imposes on the auctioneer, as an official duty, that he shall pay over to his employer the proceeds of the sale; and therefore it was held, that the auctioneer and his securities were liable on the auctioneer’s official bond, when he had failed to pay over to his employer, for a breach of-that part of the condition which bound the auctioneer to do and permit all and whatsoever the law required.

Debt on a bond, with condition, as follows:

,e State of North Carolina,?

City of Raleigh. 3

“ Enow all men by these presents, that we, Kenneth Gillis, John Holloway, Lewis Yancy and James Mears, all of the city of Raleigh, are held and firmly bound unto the commissioners of said city, and *235to their successors in office, in the sum of five thousand pounds, to which payment well and truly to be made, &c.

“ The condition of the above obligation is such, that whereas the above bounden Kenneth Gillis, were, on the 7th day of August, 1818, appointed to act as auctioneer in said city, if, therefore, the said Kenneth Gillis, shall well, truly and faithfully account lor and pay to the said commissioners, or their successors in office, from time to time,- and on -such days as may be appointed for that purpose by said commissioners, one per centum on the total amount of all sales .which shall have been made by him, and for which he is liable by law as auctioneer as aforesaid, and shall moreover do and permit all and whatsoever the law requires of him as such auctioneer, then the above obligation to be void, otherwise to remain in full force and virtue.”

The writ in this case wás,' “ to answer Henry Potter, William Hill, Joseph Gales, Samuel- Goodwynn, John Holloway, Benjamin S. King and David Royster, commissioners of the city of Raleigh, and their successors in. office, of a plea, &c.

The breach assigned was, that goods had been delivered to Gillis to sell at auction, by Southy Bond, and that he had sold them and failed to pay over the proceeds.

The defendants pleaded the general issue, conditions performed, conditions not broken; and on the trial below, before Daniel, Judge, the plaintiffs introduced a witness who swore he delivered the goods in question, and that upon application to the auctioneer for the proceeds, he returned a portion of them, and alleged that they could not be sold to advantage. The action was to recover the value of those not returned.

On the trial the defendants exhibited the printed act of assembly, by which the corporation of the city of Raleigh is styled, “ The Commissioners of the city of Raleigh;” and objected, that the bond was void, or, at least, could not be given in evidence on the trial of this suit. T.t was further objected, that the plaintiffs should show that, at the time of suing out this writ, or at the timé of. signing the bond, those named in the writ were commis-sioiiers. Upon these objections the Court determined *236against the defendants, and léft it to the jury to deter-m*ne Aether, from the evidence, the goods not returned were sold by the auctioneer, and directed them that, if ^ey be °f opinion they were sold and not accounted for, they should find for the plaintiffs according to their value.

Verdict for plaintiffs, new trial refused, judgment and appeal.

S caw elk for plaintiff.

Hawks and Haywood, contra,

Henderson, Judge.

GilliSr, the auctioneer for whom the defendants arc securities, was appointed under the act of 1806, authorizing the city of Raleigh, and the several towns therein mentioned, to appoint auctioneers: and the question is, whether the words that he, Gillis, shall.do and permit all that the law requires (the obligatory words of his official bond,) bind him to account with, and pay to the owner, the, proceeds of goods by him sold as an auctioneer. There is no where to be found, in the act, any express words by which such duty is imposed; all that is said, in relation to the proceeds of the sales made by the auctioneer, is, that part which gives the summary remedy to the owner against the auctioneer, neither the words or spirit of which extend to the securities. , The only duties imposed on him, in express terms, are, that he shall render an account to the commissioners of his sales, pay to them one per centum thereon, and submit his accounts to them and to others interested therein. But as the act gives to him the exclusive right of selling goods at auction, except in particular cases, (within any of which exceptions this case does •not fall,) I think that the law, and not the mere contract of the party, imposes on him the obligation to account with and pay to the plaintiff the proceeds of the sale: for the law takes from the plaintiff the right and power of exercising his own judgment in the selection of an agent, *237and appoints one to act for him; it is, therefore, reasonable that the law should impose on the agent one of the most obvious and necessary duties arising out of his situation as agent, and without which no private agent would ever be employed. And this obligation, to wit, that the agent should render to his principal the proceeds of his principal’s property by him sold, is raised without any words or promise to that effect; it arises from their relation, and without which no such relation would be created by individuals. It is not, I think, a strained interpretation of the law to say, that this obligation is imposed by the law; that it exists independently of any contract of the parties, either express or implied.

If may be observed, against this argument, that Bond could, have sold the goods himself, they being his own, without violating the act. To this it may be answered* that he chose to do it by an agent; and as the law restrained him from making his own selection, it is not unreasonable that this official agent should be held liable on official responsibility. This construction is very much aided by the large penalty (five thousand pounds) in which the legislature directs the auctioneer to be bound; a sum much exceeding the one per centum duty from sales at auction in all the towns mentioned in the act. I think that there should be judgment for the plaintiff.-

The rest of the court concurreck