Peck v. List.

in Bexwell v. Christie. Chief Justice GIBSON delivering the opinion. of the court says: "It is impossible to doubt the principle of the civil law adopted by Lord MANSFIELD in Bexwell v. Christie. Good faith is an indispensable ingredient of fair dealing; and it is impossible to imagine a purpose consistent with it, for which sham-bidding is necessarily employed. The vendor may so prescribe conditions of sale which will enable him to return the property should it not come up to his price; and if he do not produce the effect openly, why should he do it covertly? Common honesty requires that all should be fair and above board. To screw up the price, as it has been aptly termed, by secret machinery, can be no less than a fraud; and a sham-bidder can be used for no other purpose. The decisions on the subject have fluctuated; but the largest license allowed in any of them has been to employ a single puffer; yet whether there be one or whether there be twenty, the mischief is the same, except as to the degree of it. It has been said the employment of a plurality discloses too clearly to be mistaken, not a design to protect the property from being sacrificed, but to give an artificial impulse to the sale of it. That touches the honesty of the vendor's motives; but what have the bidders to do with? Should he actually think that not less than twenty could protect it, the sale would still be, according to all the cases, fraudulent and void. It is not his motive but his acts by which they are affected; and these present a question not of actual but of legal fraud."

He also says: "The weight of authority is now, as it was at first, in favor of the true principle. Whatever may have been the state of the balance when Mr. Sugden collected the cases in his treatise on Vendors, his own opinion evidently coincided with that of Lord MANSFIELD; and Chancellor KENT expressly adhered to it. Against Bramley v. Alt, Connelly v. Parsons, Smith v. Clarke, and Steel v. Ellmaker, we have in addition to Bexwell v. Christie and Howard v. Castle the modern cases of Crowden v. Austin, Wheeler v. Collier, Thornett v. Haines, Meadows v. Tanner, and Veazie v. Williams. After the English judges have overruled three of their decisions we ought not to be tenacious of our single one. I concurred in the decision of Steel v. Ellmaker exclusively on the foundation of precedent; but the balance of authority is conclusively the other way, and that case has neither principle nor precedent to support it."

With this reasoning and conclusion of Chief Justice GIBSON I en

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tirely concur.

He also makes some remarks in the case of Staines v. Shore, 16 Penn. St. 203; 55 Am. Dec. 492, which meet my entire approbation. He says: "In the present case the ruling judge instructed the jury that if the horse was actually worth the sum paid for him, the buyer got the value of his money and could not have been defrauded. The fallacy of the principle is assuming that there is a standard of value, independent of the wishes and wants of the bidders, and every man is willing to buy by it. What is the worth of any thing? The apophthegm of Hudibras answers truly jast so much money as it will bring.' A man is defrauded, whenever he is incited by artful means to bid more than he otherwise would for no fair purpose is the employment of a purfer necessary, and it must vitiate every sale in which recourse is had to it."

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These views of Chief Justice GIBSON are it seems to me the necessary results of the English common-law cases and the opinions of Lords MANSFIELD, KENYON and TENTERDEN, which we have already quoted. The English common-law cases are fully sustained by the case of Towel v. Levitt, 3 Fost. 367.

In the case of Baham v. Bach, 13 La. 287; 33 Am. Dec. 561; it was held, that the owner of property may withdraw it, before the highest bid is accepted by the auctioneer, but has no right to hid himself, unless he publicly reserves this right. In delivering the opinion of the court, EASTIS, J., adopts the principle of Bexwell v. Christie, and remarks : "The doctrine in that case has not been followed in all cases, but we apprehend that time and scrutiny will re-establish its force, whenever the principles of law and public morals are co-incident." To the same effect is Correjoller v. Mossy, 2 La. 607. It seems to me that the position in this case that the owner of property may withdraw it before the highest bid is accepted by the auctioneer" is very reasonable and ought perhaps to be adopted, though it may not be a proper deduction from the English common-law cases, which lay down certainly the general principles which meet my hearty approbation.

66

In Mc Dowell v. Simms, 6 Ired. Eq. 278, PEARSON, J., makes some remarks, which it seems to me are very sound. After reviewing a number of English cases and saying that he inclined to the opinions expressed by Lords MANSFIELD and KENYON, which I have before quoted, he says: "It is impossible, as Lord LOUGHBOROUGH and Sir WILLIAM GRANT attempted to do, to run a divid

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ing line so as to say when this by-bidding is intended for puffing and when merely to prevent property being sacrificed. In the nature of things any by-bid tends to inflate the price more or less except it be announced to be a bid for the owners of the land."

In the National Bank of Metropolis v. Sprague, 20 N. J. Eq. it was decided: "That the employment of puffers by creditors, in whose behalf property is offered for sale at public auction, for the purpose of increasing the price by fictitious bids is a fraud upon honest bidders; and a buyer at such sale can be relieved from his purchase." In the case of Reynolds v. Dechaums, 24 Tex. 174, the spirit of the English cases on the subject of puffing appears to be approved. But in Veazie v. Williams, 8 How. 153, the rule of the English common-law courts as to the effect of puffers on a sale at auction was approved by the Supreme Court of the United States. There is no decision in this State or in Virginia which touches the question under consideration except the case of Hinde v. Pendleton, Wythe, 145, in which Chancellor WYTHE entertained views on puffing not unlike those of Lord MANSFIELD. He says on page 146: "The act of by-bidding is a dolus malus: 1. The by-bidder offering a price for the thing proclaimed to be sold professeth a wish to buy it; which profession is false, for he not only doth not wish to buy the thing but wishes another man to buy it and tempteth him to bid for it. 2. The by-bidder, instead of being one who would be a buyer, is in truth the seller disguised." The chancellor set aside the sale in that case, because a puffer bid at it.

From this review of the authorities it appears to me, that the weight of the authorities in the United States sustains the rules in reference to the effect of puffing laid down by the English commonlaw courts rather than those laid down by the English Chancery Courts. And in view of the fact that after nearly a hundred years of experience and a vigorous pressing of their respective advocates of these opposing rules with reference to the effect of puffing, there has been an abandonment in England of the rules laid down by the Chancery Courts and a candid admission by its advocates of the superior excellence of the rules laid down by the common-law courts, it seems to me we cannot hesitate to adopt them, especially as they are based on better reason and are more definite and easy of application, and tend to the promotion of honesty in the dealings of mankind. It will be observed, that in most of the cases where there have been by-bidders, they were employed by the owners of the

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property about to be sold at auction, that is, were puffers in the strict sense of the word. But it is obviously unimportant whether the by-bidder is employed by the owner of the land or by some one else having a pecuniary interest in the auction about to be made, and who stands in such a relation to it that he can make good his assurance to the by-bidder, that he shall not be held responsible for his bid if it happen to be the highest bid made. The real essence of the fraud is not that the owner is bidding for the property, but it consists in the fact that a by-bidder pretending to be a bona fide bidder deceives honest bidders, raises the price of the property by fictitious bids increasing competition, while he himself has good reason to believe and does believe that he is secure from any risk of being held personally liable for his bids. It is immaterial from whom he derives this assurance of immunity, provided the party giving the assurance expressly or impliedly has the power either legally or practically to make good the assurance.

The conclusions therefore which I reach are : If the owner of goods or of an estate put up for sale at auction employs one or more puffers to bid for him, or if a by-bidder be employed by any one interested in such sale, and such by-bidder has assurances expressed or implied that neither he nor his employer shall be held responsible for his bid, should it happen to be the highest bid, either from the auctioneer declining to knock the property down to him or otherwise, and the legal or moral power exists in his employer to make good this assurance, then a single bid made by such puffer or by-bidder is a fraud on the sale, and the highest bidder cannot be compelled to comply with his contract. It makes no difference, that such puffer or by-bidder was employed to prevent a sacrifice of the property and was directed to bid it to a fixed price only; nor does it make any difference, that the property only sold at a reasonable price. The purchaser in any such case has a right to repudiate the sale, if he does so promptly, as soon as he ascertains that there was such puffer or by-bidder who bid at the sale. [Omitting this.]

It only remains to apply this law to the facts proven in this case. Judgment affirmed.

A testamentary provision for the preaching of the gospel, as taught by the people known as Disciples of Christ, in Lorain county, in Birmingham, and at Berlin, Erie county, Ohio, is valid. (See note, p. 420.)

A

CTION for construction of a will. The clause in question was as follows: "Item 3: At the decease of my wife Esther, I give and bequeath all my estate, real and personal, for the preaching of the gospel of the blessed Son of God, as taught by the people known now as Disciples of Christ. The preaching to be well and faithfully done in Lorain county in Birmingham, and at Berlin, in Erie county, Ohio, and I nominate and appoint John Cyrenius, Silas Wood and Samuel Steadman, executors of this item of my last will and testament and I request them to do the business without remuneration." The court below held the trust valid.

N. S. Johnson, for plaintiff in error.

Pennewell & Lamson and Geo. P. Metcalf, for defendants in

error.