*539

It would seem to be the conclusion, from the latter cases, that the employment of a bidder by the owner would or would not be a fraud, according to circumstances tending to show innocence of intention, or a fraudulent design. If he was employed bona fide to prevent a sacrifice of the property under a given price, it would be a lawful transaction, and would not vitiate the sale. But if a number of bidders were employed by the owner, to enhance the price by a pretended competition, and the bidding by them was not real and sincere, but a mere artifice in combination with the owner, to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale. So, it will be a void sale, if the purchaser prevails on the persons attending the sale to desist from bidding, by reason of suggestions by way of appeal to the sympathies of the company.b

The original doctrine of the K. B. is the more just and salutary doctrine. In sound policy, no person ought, in any case, to be employed secretly to bid for the owner against the bona fide bidder at a public auction. It is fraud in law on the very face of the transaction; and the owner's interference and right to bid, in order to be admissible, ought to be intimated in the conditions of sale; and such a doctrine has been recently declared at Westminster hall.c

a Hazel v. Dunham, N. Y. Mayor's Court, July, 1819. Morehead v. Hunt, 1 Badg. & Dev. Eq. Rep. N. C. 35. Woods v. Hall, Ibid. 411. Wolfe v. Luyster, 1 Hall's N. Y. Rep. 146.

An association of bidders,

with a design to stifle competition, is a fraud upon the vendor. Smith v. Greenlee, 2 Dev. N. C. Rep. 126. The case of Phippen v. Stickney, 3 Metcalf, 384, seems to place the validity of private agreements, between bidders at auction sales, on the quo animo, and to be good or void according to the purpose with which they are made.

b Fuller v. Abrahams, 6 Moore's Rep. 316. 3 Brod. & Bing. 116, S. C. Mr. Justice Story, in Veazie v. Williams, 3 Story's Rep. 623, approves of the conclusion I have drawn from the cases.

e Crowder v. Austin, 3 Bing. Rep. 368. The language of the supreme

It has been made a question, how far auction sales were within the provisions of the statute of frauds; but it is now understood to be settled that they are within the statute, and that the auctioneer is the agent of both parties, and lawfully authorized by the purchaser, either of lands or goods, to sign the contract of sale for him as the highest bidder. The writing his name as the highest bidder in the memorandum of the sale by the auctioneer, immediately on receiving his bid, and knocking down the hammer, *is a sufficient sign- *540 ing of the contract within the statute of frauds, so as to bind the purchaser. Entering the name of the buyer by the auctioneer, in his book, is just the same thing as if the buyer had written his own name. The purchaser who bids, and announces his bid to the auctioneer, gives the auctioneer authority to write down his name, and the authority to the agent need not be in writing. There is no difference in the construction of the fourth and seventeenth sections of the statute of frauds of 29 Car. II. c. 2,b as to what is a sufficient signing of the contract by the party to be charged. The English law, as originally suggested in the case of Simon v. Motivos,c has been repeatedly recognized, and considered as the established doctrine in respect to auction sales of lands and chattels by the English and American courts.d

court of Louisiana is strongly in favor of the doctrine of Lord Mansfield. Bahan v. Bach, 13 Louisiana Rep. 287. Mr. Justice Ware in his dissenting and very learned opinion in the above case of Veazie v. Williams, p. 637. 638, approves of the original doctrine of the K. B.

Whether the auctioneer be the agent of both parties, depends upon the facts of the particular case, and he is not so as of course in all cases. Bartlett v. Punnell, 4 Adolp. & Ellis, 792.

Re-enacted, N. Y. Revised Statutes, vol. ii. p. 135. sec. 2. Ibid. vol. ii. p. 136. sec. 3.

3 Burr. Rep. 1921, S. C. 1 Blacks. Rep. 599.

a Hinde v. Whitehouse, 7 East's Rep. 558. Heath, J., in 1 H. Blacks Rep. 85. Emmerson v. Healis, 2 Taunt. Rep. 38. Ibid. 209. Kemeys v. Proctor, 3 Ves. & Bea. 57.

White v. Proctor, 4

Kenworth v. Scho

field, 2 Barnw. & Cress. 945. M'Comb v. Wright, 4 Johns. Ch. Rep.

XI. Of the vendor's right of stoppage in transitu. This right, which has been already alluded to, requires a more particular discussion. It is the right which the vendor, when he sells goods on credit to another, has of resuming the possession of the goods, while they are in the hands of a carrier or middle man, in their transit to the consignee or vendee, and before they arrive into his actual possession, or to the destination which he has appointed for them, on his becoming bankrupt or insolvent. The right exists only as between the vendor and vendee; and as the property is vested in the vendee *541 by the contract of sale, it *can be revested in the vendor during its transitus to the vendee, under

the existence of the above circumstances.a

The right is very analogous to the common law right of lien. The latter right enables the vendor to detain goods before he has relinquished the possession of them; and this right of stoppage enables him to resume them before the vendee has acquired possession, and to retain them until the price be paid or tendered. If the price

659. Cleaves v. Foss, 4 Greenleaf's Rep. 1. Alna v. Plummer, 4 Ibid. 258. First Baptist Church of Ithica v. Bigelow, 16 Wendell, 28. The N. Y. Revised Statutes, vol. 1. 3d edit. 649, requires that when goods are struck off at auction, and there be not immediate payment of the price or delivery of the goods, it shall be the duty of the auctioneer to enter in a sale book a memorandum of the sale, specifying the nature, quantity and price of the goods, the terms of sale, the names of the purchaser and of the person on whose account the sale is made. And by the R. S. 3d edit vol. ii. 195, an entry in the auctioneer's sale book, specifying the nature and price of the property sold, the terms of the sale, and the names of the parties, is a memorandum or note within the statute of frauds. The memorandum in the auctioneer's sale book must be made at the time and place of sale, and the entry of the name of the agent or consignee who has lawful authority to sell, is entering the name of the person on whose account the sale is made, within the statute. Hicks v. Whitmore, 12 Wendell's Rep. 548.

a Mason v. Lickbarrow, 1 H. Black's Rep. 357. Hodgson v. Loy, 7 Term Rep. 440. Bohtlingk v. Inglis, 3 East's Rep. 381. Burghall v. Howard, 1 H. Black's Rep. 365, n. Oppenheim v. Russell, 3 Bos. & Pull. 44.

be paid or tendered, he cannot stop or retain the goods. for money due on other accounts. The right of stoppage does not proceed upon the ground of rescinding the contract, but as a case of equitable lien. It assumes its existence and continuance; and, as a consequence of that principle, the vendee, or his assignees, may recover the goods, on payment of the price; and the vendor may sue for and recover the price, notwithstanding he had actually stopped the goods in transitu, provided he be ready to deliver them upon payment. If he has been paid in part, he may stop the goods for the balance due him, and the part payment only diminishes the lien pro tanto on the goods detained. There must be actual payment of the whole price, before the right to stop in transitu, in case of failure of the vendee, ceases. Though a bill of exchange has been made accepted by the vendor for the price, and endorsed over by him to a third person, even that will not take away the right; and if the bill be proved under a commission of bankruptcy against the vendee, it will only be considered a payment to the extent of the dividend. The right to stop in transitu is paramount to any lien of the carrier for a general balance between him and the consignee, but the lien of the carrier or wharfinger in the particular case is preferred. *The *542 right came from the courts of equity, and was first established in Wiseman v. Vandeput, and its apparent equity

Lord Kenyon, in Hodgson v. Loy, 7 Term Rep. 445. It is said to be a question still undecided whether the effect of stoppage in transitu be to rescind the contract of sale, or only to replace the vendor in the position he occupied before parting with the possession, and to hold the goods till the price be paid. See Wentworth v. Outhwaite, 10 Meeson & Welsby, 436.

b Kymer v. Suwercropp, 1 Camph. Rep. 109.

Hodgson v. Loy, 7 Term Rep. 440 Feise v. Wray, 3 East's Rep. 93. Newhall v. Vargas, 13 Maine Rep. 93.

e

Feise v. Wray, 3 East's Rep. 93.

Oppenheim v. Russell, 2 B. & Puller, 42. Morley v. Hay, M. & Ryland, 396.

2 Vern. Rep. 203. See, also, Snee v. Prescott, 1 Atk. Rep. 245. D'

recommended the adoption of it in the courts of law as a legal right. It would be very unreasonable to allow the goods of the vendor to be appropriated to the payment of other creditors of the vendee, who fails before payment, and before the goods have actually reached him. The right, has accordingly, been greatly favoured and encouraged, and many distinctions made relative to its continuance and termination; and yet it is now declared, that a court of equity, from whence the right originated, has no jurisdiction to interfere and support it by process of injunction. Lord Eldon said, there was no instance of stopping in transitu by a bill in equity. The English law on the subject of this right, and the class of cases by which it is asserted and established, have been very generally recognized and adopted in our American courts.b

(1.) Of the persons entitled to exercise this right.

The right extends to every case in which the consignor is substantially the vendor; and it does not extend to a mere surety for the price, nor to any person who does not stand in the character of vendor or consignor, and rest his claim on a proprietor's right. As between principal and factor the right does not exist; but a factor or agent who purchases goods for his principal, and makes himself lia

ble to the original vendor, is so far considered in *543 the light of a vendor, as *to be entitled to stop the goods. So, a principal who consigns goods to his factor upon credit, is entitled to stop them if the factor

Aquila v. Lambert, Amb. Rep. 399, to the same point, of the early establishment of the doctrine in equity.

Goodhart v. Lowe, 2 Jac. & Walk. 349.

b Ludlows v. Bowne & Eddy, 1 Johns. Rep. 16. Parker v. M'Iver, 1 Eq. Rep. S. C. 181. Stubbs v. Lund, 7 Mass. Rep. 453. The St. Joze Indiano, 1 Wheaton, 212. Wood v. Roach, 2 Dall. Rep. 180. Walter v. Ross, 2 Wash. Cir. Rep. 283. Howall v. Davis and C., 5 Munf. Rep. 34. • Siffken v. Wray, 6 East's Rep. 371.

4 D'Aquila v. Lambert, Amb. Rep. 399. Feise v. Wray, 3 East's Rep. 93.