Jones v. Caswell. was, therefore, the real consideration, and I think it a consideration which ought not to be sanctioned in a court of justice. The law has regulated sales on execution with a jealous care, and enjoined such proceedings as are likely to promote a fair competition. A combination to prevent such competition, is contrary to morality and sound policy. It operates as a fraud upon the debtor and his remaining creditors, by depriving the former of the opportunity, which he ought to possess, of obtaining a full equivalent for the property which is devoted to the payment of his debts, and opens a door for oppressive speculation. On a similar principle, the bidding of puffers at auction, to enhance the price for the benefit of sellers, has been adjudged, in the English courts, a fraud on real bidders, and the purchaser not held by his bid.(b) Cowp. 395. 6 Term (b) See Bexwell v. Christie, Cow. 396. Per Grose J. in Blachford v. Preston, 8 Term, 93. Howard v. Castle, 6 Term, 642. Twening v. Morrison, 2 Bro. C. C. 362. The acts of parliament which sanction the bidding by an owner or his agent, are not construed to sauction the employment of puffers to raise the price, but only a bidding with a view to prevent the estate from being sold at an undervalue. (Bab. on Auc 47. Sug. Law of Vend. & Purch, 23, 24) And it seems, that where several persons are employed by the vendor to bid for him, without public notice, even if there are real bidders, the purchaser will not be compelled to complete his contract, (though a different opinion appears formerly to have prevailed,) (Conolly v. Parsons, 3 Ves. Jr. 625, n. Bramley v. Alt, 3 Ves. Jr. 620,) as the appointment of more than one person must be merely for the purpose of enhancing the price, and cannot be necessary for the purpose of protection against the estate being sold at an undervalue. (Smith v. Clarke, 12 Ves. Jr. 483. Blachford v. Preston, 8 Term Rep. 93, 95.) But there is no doubt that the owner may appoint one person to bid for him, for the purpose of guarding against a sale of his property taking place at less than its value, and that a purchaser at such sale, will be bound to complete his purchase, whether notice of the appointment of such bidder was given or not. This is a rule founded in reason and equity, for by it the seller is enabled to protect himself against the tricks, which might otherwise be practised upon him by bidders. Thus at an auction where one person only bid for the vendor to 751. an acre upon a private notice being given to the auctioneer for the purpose of saving the duty in case the estate was bought in, but without any public notice being given of his appointment, and then after a contest with real bidders, the estate was sold at 1017. 17s. per acre, and the purchaser some days afterwards paid the duty and confirm. ed the purchase. He was decreed to perform the contract with costs. Jones v. Caswell. Rep. 542.) An attempt to silence bidders cannot be viewed in a more favorable light. (Bramley v. Alt, H. 1798. 3 Ves. Jr. 620.) So in Smith v. Clarke, (12 Ves. Jr. 477,) where the vendors upon the sale of an estate had employed a person to bid up to but not to exceed 7501., which was the sum for which the estate was sold. It was held that they had not committed any fraud, as the person em. ployed by them, was not employed generally for the purpose of enhancing the price, but for the purpose of guarding against a sale taking place at less than the real value; and they having pevious to the sale told him what they considered the real value to be, and beyond which he was not to bid. And if an estate is sold by auction, and there is no contest between real bidders, there being but two bidders, the one employed by the vendor, of which appointment public notice had been given, and the other, the purchaser, such notice will render the purchaser liable to complete his contract. (Oldfield v. Round, 5 Ves. Jr. 508.) And it seems that the rule would be the same even where public notice had not been given, provided the bidder was appointed only to protect the vendor's interest, and not for the purpose of raising the price. (Sugden's Law of Ven. & Purch. 6th edit. 23.) It seems doubtful whether the appointment of one puffer would in any case render the sale void. From the case of Smith v. Clark, (12 Ves. Jr. 483,) it seems that it would; but from the note of a case in Mr. Sugden's excellent treatise on the law of vendors and purchasers, (6th edit. p, 24, Fitzgerald v. Forster, 31st of July, 1813,) it appears that the present Vice Chancellor in a late case expressed a contrary opinion; but this opinion of his Honor, it is conceived, cannot be supported consistently with the various other decisions respecting pufers, all of which proceed on the ground, that the employment of persons to bid for the purpose of enhancing the price beyond the real value is a fraud upon real bidders; and if the effecting that purpose by several persons is fraudulent, so also must the effecting of it be by one. But where an estate is advertised to be sold without reserve, the appointment of one puffer will certainly render the sale void. For the plain meaning of the words "without reserve" is that no person will be employed to bid on behalf of the vendor: and therefore where such words are used, and a person is employed by the vendor for the purpose of keeping up the price, the vendor can have no claim to the aid of a court of equity to enforce a contract against a purchaser, into which he may have been drawn by the vendor's want of faith. (Meadows v. Tanner, 5 Mad. 34. Babington on Auctions, 50-53.) The American cases seem to follow the rule stated by Radcliff J. in the principal case; (See Moncrief v. Goldsborough, 4 Harris & McHenry, 282; Donaldson v. McKoy, 1 Browne, 346; Smith v. Greenlee, 2 Devereux, 126 ;) though it has been held that the employment of a person to bid at a public sale on the part of the vendor does not vitiate the sale; but a purchaser at such sale will be compelled to complete his purchase, though he had no no. tice that such person was employed, and though the price was by such means Jones v. Caswell. I am, therefore, of opinion, that the consideration of the notes was illegal and void, and that judgment of nonsuit ought to be entered. KENT, J. As the notes were endorsed by Ward to Jones, with full knowledge in Jones, of the circumstances under which they were given, he having been [*33] *the principal in the negotiation, and as the notes were endorsed by Jones to his son, after they were due, and with full knowledge also in the son, of the original negotiation, I consider the merits of the case between the parties the same as if the suit was in the name of the original payee. The defendant is entitled to go into the consid eration of the notes. And, upon facts stated, I am of opinion, that the notes were given without valid consideration. All that Samuel Jones could, or ought to have demanded, in consequence of his execution, was the amount of his judgment. That was paid him by the defendant, and to demand the further sum of 150 dollars for desisting from bidding at the sale, was an unconscientious demand. It was a consideration against public policy, which encourages bidding at sales on execution. This was the language of the old law; (8 Co. 97, a.) and the same policy is pursued in our statute, which directs how long, and in how many places, notice of such sales shall be given by the sheriff. The defendants were at the auction, struggling, as innocent purchasers, to protect themselves from loss; and advantage was probably carried beyond its real value. (Jenkins v. Hogg, 2 Const. Rep. 821. See also Steele v. Ellmaker, 11 S. & R. 86.) And in another case it has been held that, if at an auction a puffer is employed, by whom the property sold is run up to an unreasonable price, yet the fraud cannot be inquired into in an action for the purchase money against the vendee, an action on the case or a bill in equity is the proper remedy. (Miller v. Campbell, 3 Marsh. 526.) It is however, not illegal to place goods in an auctioneer's hands with directions that he shall not part with or depose of them unless they produce a specified sum; the restriction not being regarded as an unlawful means of enhancing the price, nor an imposition on fair purchasers. (Wolfe v. Luyster, 1 Hall, 146. Hazul v. Dunham, ib. 655.) And if the auctioneer disobey these directions, he is liable in damages to his employer. (ib. S. P. Steele v. Ellmaker, 11 S. & R. 86. See Haynes v. Crutchfield, 7 Alabama, 189.) Jones v. Caswell. taken of their fears, and their anxiety to preserve the estate. The suggestions of Jones, that he had a further debt against Egleston, and had been at trouble and expense in obtaining the judgment, do not appear to have formed any part of the consideration of the notes. They appear to have been thrown out, after the negotiation had been completed, and the contract made. We cannot take them to be any thing more than mere suggestions, as they have not been supported by proof. The notes, therefore, resting wholly on the consideration that the plaintiff's father should desist from bidding at the sale, I think the consideration must be adjudged void, as against public policy,(c) and the interests of the original debtor, whose property is liable to be sacrificed by such combinations. *I am of opinion that judgment of nonsuit must be [*34] entered, according to the stipulation in the case. LEWIS, Ch. J. was of the same opinion. Judgment of nonsuit.(d) (c) [Old note.] See Doolin v. Ward, 6 Johns. Rep. 195. (d) The doctrine of the principal case was re-affirmed in Thomson v. Davies, (13 Johnson, 112;) and upon the same principle, an agreement between two persons not to bid against each other at an auction, but that one was to bid and divide with the other, is against public policy, and void. (Doolin v. Ward, 6 Johns. 194. Wilber v. How, 8 Johns. 444.) So if A. agree to give $1000, on condition that B. will forbear to propose, or offer himself to the postmaster-general, to carry the mail on a mail route, such agreement is against public policy, and no action can be maintained on it. (Gulick v. Ward, 5 Halst. 87.) There is however, nothing illegal in two or more persons agreeing together to purchase a property at a sheriff's sale and fixing a certain price which they are willing to give, and appointing one of their number to be the bidder. (Smull v. Jones, 6 Watts & Serg. 122.) Stagg v. United Ins. Co. STAGG and SNELL against THE UNITED INSURANCE COMPANY. Insurance on a vessel, from New York to Curracoa. The vessel met with heavy gales in consequence of which she sprung a leak, and was obliged to have her maiumast cut away; and after much difficulty arrived at Curracoa, but could not be repaired for want of materials, and if repaired would not have been worth the expense; it being admitted, that she received her death wound during the voyage, it was held that the insured were entitled to recover for a total loss. THIS was an action on a policy of insurance on the ship Mary Ann, from New York to Curracoa. She sailed the 25th February, 1800, on the voyage insured. On the 28th February, she experienced a heavy gale of wind, and became leaky, so that she could not be kept free of water with both pumps. The next day the gale continued and the pumps became choaked with corn, and the water gained to four feet in the hold. To secure the ship, part of the cargo was thrown overboard, and in consequence of a heavy sea, it became necessary to cut away the mainmast. When the gale abated, the ship had 9 feet of water in the hold. She was with great labor enabled to reach Curracoa on the 28th March. For want of materials, the ship could not be repaired there, nor if refitted would she have sold for enough to pay the expense of her repairs. It was admitted, that she received her death wound on the voyage to Curracoa. The plaintiff's abandoned for a total loss. The question was whether the plaintffs were entitled to recover for a total, or for an average loss only. The cause was argued, at the last term by B. Livingston, for the plaintiffs, and Troup, contra. [*35] *Per Curiam. The plaintiffs are entitled to recover for a total loss. The ship was not worth repairing at Curracoa. This want of value arose from injuries sustained during the voyage, by the perils of the sea; for it is admitted that the ship received her death wound on the voyage. In the case |