persons formed for the purpose of bidding at this sale; as it may be not only unobjectionable, but oftentimes meritorious, if not necessary, to examine into the objects and purposes of it; and if upon such examination it is found that the object and purpose are not to prevent competition, but to enable or as an inducement to the persons composing it to participate in the biddings, the sale should be upheld; otherwise, if for the purpose of shutting out competition, and depressing the sale, so as to obtain the property at a sacrifice. Each case must depend upon its own circumstances; the courts are quite competent to inquire into them, and to ascertain and determine the true character of each."

h. Puffing and By-bidding. The general rule is that the employment of puffers, or the procuring of by-bidders, by the vendor at an auction sale, to enhance the price, when the sale is supposed to be without reservation, is illegal and a fraud on bona fide bidders. Hence the purchaser at a sale where such puffing or by-bidding has been done may decline to complete his purchase or may rescind it within a reasonable time. If the vendor, with a view to preventing a sacrifice of his property, desires to have any restrictions upon the right of the highest bona fide bidder to take the property, he should make such a provision as one of the conditions of the sale, or start the property at a certain price, or reserve a bid to himself. Either of such courses is legitimate, for of course he can prescribe the conditions upon which he will sell. But if he puts the property up for sale without any reservation, then the purchaser is entitled to buy at an under-value if he can fairly do so, and any secret contrivance by way of puffing which deprives him of this right vitiates the sale: Baham v. Bach, 13 La. 287, 33 Am. Dec. 561; Moncrief v. Goldsborough, 4 Har. & McH. 281, 1 Am. Dec. 407; Curtis v. Aspinwall, 114 Mass. 187, 19 Am. Rep. 332; Springer v. Kleinsorge, 83 Mo. 152; Towle v. Leavitt, 23 N. H. 360, 55 Am. Dec. 195; National Bank v. Sprague, 20 N. J. Eq. 159; Minturn v. Main, 7 N. Y. 220; Bowman v. McClenahan, 20 App. Div. 346, 46 N. Y. Supp. 945; Morehead v. Hunt, 16 N. C. 35; Smith v. Greenlee, 13 N. C. 126, 18 Am. Dec. 564; Walsh v. Barton, 24 Ohio St. 28; Flannery v. Jones, 180 Pa. 338, 57 Am. St. Rep. 648, 36 Atl. 856; Davis v. Petway, 3 Head, 667, 75 Am. Dec. 789; note to Thomas v. Kerr, 96 Am. Dec. 267. A leading case on the question is Peck v. List, 23 W. Va. 338, 48 Am. Rep. 398.

The employment of puffers invalidates an auction sale, although the property sells for no more than it is worth: Staines v. Shore, 16 Pa. 200, 55 Am. Dec. 492; and where puffers bid the property up to an extravagant price, a purchaser is entitled to relief, although at the time when he buys he is contending with real bidders: Morehead v. Hunt, 16 N. C. 35.

A purchaser who has been defrauded by puffing may lose his right to rescind by acquiescence or unreasonable delay in abandoning his contract: Latham's Exrs. v. Morrow, 6 B. Mon. 630; McDowell v. Simms, 41 N. C. 278.

It remains to be noticed that the fact that the vendor employs a person to bid in for him, or to bid so as to enhance the price, does not necessarily, at least according to the better rule, vitiate the sale: Latham's Exrs. v. Morrow, 6 B. Mon. 630; Jenkins v. Hogg, 2 Tread. Const. 821; Reynolds v. Dechaums, 24 Tex. 174, 76 Am. Dec. 101. The case of McMillan v. Harris, 110 Ga. 72, 78 Am. St. Rep. 93, 35 S. E. 334, 48 L. R. A. 345, is a leading decision on this question, and the court in the course of its opinion uses this language: "The matter may thus be summed up. If a person who has such control of an auction sale that he of his own volition can release a bidder from all responsibility for his bid employs another upon an understanding of that character to bid at the sale without disclosing for whom he is bidding, for the purpose of preventing the property from selling at a sacrifice or for the purpose of making the same bring more than its actual value, the bidding by one or more persons under such employment is such a fraud upon the real bidders that the sale will be declared void at their instance. The only lawful way in which such a person can prevent a sacrifice of the property sold is to fix a minimum price of which public notice shall be given, or make public the fact that he, either by himself or by others, will be a bidder at the sale. On the other hand, the mere fact that the person is interested in the property to be sold or in the proceeds of the sale will not preclude him from either bidding himself or from procuring another to bid, either openly or secretly, in his behalf, without regard to what the agreement may be with such bidder, if the one employing such bidder has not himself such control of the sale that he could absolutely release the bidder from all responsibility growing out of his having participated in the sale in that capacity."

A stricter rule has been adopted by some authorities, as will appear from the following extract from Hartwell v. Gurney, 16 R. I. 78, 13 Atl. 113: "Formerly in England there was a conflict between the law and the equity courts, the law courts holding that by-bidding or puffing was a fraud, and that any highest bidder who had been deceived by it could avoid his contract or refuse to carry it out; whereas, the equity courts were disposed to countenance it so long as it was employed defensively to prevent a sacrifice. The doctrines at common law and in equity have recently (1867) been assimilated in England, at least so far as regards auction sales of real estate, by statute, making the rule at common law likewise the rule in equity. In this country there are cases which, following the old English chancery rule, hold that the vendor may employ a by-bidder if he does it bona fide to prevent a sacrifice of the property under a given price. But in our opinion the rule which is the more authoritatively established is that by-bidding is illegal, and that the vendor cannot hold the purchaser where the price has been run up by means thereof. .... It seems to us that the stricter rule is the just and honest rule, and that it ought to prevail; for an offer to sell at auction is an offer to sell to the highest bidder, and every bid is an inchoate acceptance, entitling the bidder to the property offered, if it turns

out to be the highest, and there is no retraction on either side before the hammer falls; and therefore it is a breach of faith, a falsehood, a fraud, for the vendor to have a person employed to make a feigned bid for the purpose of beguiling a real bidder into virtually overbidding himself. By-bidding, in other words, is a violation of the terms on which the people assembled at the sale are invited to compete with one another for the property exposed. The language used by Lord Mansfield, in the leading case of Bexwell v. Christie, Cowp. 395, is specially apt. The basis of all dealing ought to be good faith,' said he, 'so more especially in these transactions where the public are brought together upon the confidence that the articles set up for sale will be disposed of to the highest real bidder, which could never be the case if the owner might secretly and privately enhance the price by a person employed for that purpose.' In Howard v. Castle, 6 Term Rep. 642, Lord Kenyon, approving Lord Mansfield's decision in Bexwell v. Christie, pronounced his reasoning to be 'founded on the noblest principles of morality and justice; principles which are calculated to preserve honesty between man and man.' And in Pennock's Appeal, 14 Pa. 446, 53 Am. Dec. 561, Gibson, C. J., well says: '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.' If it be said that without bybidding the property offered may be sacrificed, the answer is that it is not necessary to offer it without reserve, and the risk of sacrifice may be avoided by publicly reserving the right to bid or to make one or more bids, in the conditions of sale, or by starting the sale at an upset price. In this or some similar way good faith may be kept with the bidders, and at the same time the property be protected."

"A puffer, in the strictest meaning of the word, is a person who, without having any intention to purchase, is employed by the vendor at an auction to raise the price by fictitious bids, thereby increasing competition among the bidders, while he himself is secured from risk by a secret understanding with the vendor that he shall not be bound by his bids": Peck v. List, 23 W. Va. 338, 48 Am. Rep. 398. "In order to constitute one who bids at a sale a puffer, it is not only necessary that he shall be employed by the owner of the property which is being sold, or by some person having an interest therein, but it must appear that the person employing the puffer was so interested in the auction or act of selling that there could be made with him a binding agreement by which the person bidding incurs not the slightest risk of being called on to comply with the terms of any bid that he may make": McMillan v. Harris, 110 Ga. 72, 78 Am. St. Rep. 93, 35 S. E. 334, 48 L. R. A. 345. "It is obviously unimportant whether the by-bidder is employed by the owner of the land or by some one having a pecuniary interest in the auction about to be made, who stands in such 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 his assurance of immunity, provided the party giving the assurance expressly or impliedly has the power either legally or practically to make good the assurance. 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": Peck v. List, 23 W. Va. 338, 48 Am. Rep. 398.

1. Acceptance or Rejection of Bids.-A bid by a person present at an auction sale is an offer which becomes a contract when accepted: Grotenkemper v. Achtermeyer, 11 Bush, 222. When the bid is made, and the property is adjudicated to the bidder, the parties occupy the same relation toward each other as exists between the promisor and the promisee in an executory contract of sale conventionally made. It produces a contract which may be enforced, but it does not absolutely convey the property: Collins v. Demarest, 45 La. Ann. 108, 12 South. 121. "Three things are necessary to complete an auction sale. There must be a bidder, the property must be struck off or knocked down, and the person to whom it is struck off must complete his purchase by complying with the terms of the sale": Sherwood v. Reade, 7 Hill, 431. Property is understood to be struck off or knocked down when the auctioneer, by the fall of his hammer or by any other audible or visible announcement, signifies to the bidder that he is entitled to the property on paying the amount of his bid according to the terms of the sale: State v. Second Nat. Bank, 84 Md. 325, 35 Atl. 889; Sherwood v. Reade, 7 Hill, 431. As soon as the hammer is struck the bargain is concluded. Thereafter, as a rule, the seller has no right to accept a higher bid, nor has the buyer any right to withdraw from the contract: Coker v. Dawkins, 20 Fla. 141.

The offer of property by the owner at auction sale and the bid therefor by an intending purchaser do not create a contract unless the bid is accepted, and the auctioneer has a discretion to reject a bid, and the bidder cannot enforce acceptance. Moreover, before the hammer falls the bidder may retract his bid or the vendor may withdraw his property: McPherson Bros. Co. v. Okanogan County, 45 Wash. 285, 88 Pac. 199, 9 L. R. A., N. S., 748; Blossom v. Milwaukee etc. Ry. Co., 70 U. S. (3 Wall.) 196, 18 L. ed. 43. In Marcus v. Boston, 136 Mass. 350, it was decided that where an auctioneer refused to accept the highest bid because not a certain amount in excess of the next lower one which he does accept, a bill in equity could not be maintained against the auctioneer to compel him to execute a memorandum of sale to the highest bidder, and the vendor

to execute a deed of the land, the remedy, if any, being an action for damages.

An auctioneer may refuse to accept a bid made on conditions different from those on which the property was put up for sale: Moore v. Owsley, 37 Tex. 603. He may also refuse bids that are only a trifling advance over those previously made: Farr v. John, 23 Iowa, 286, 92 Am. Dec. 426; Taylor v. Harnett, 26 Misc. Rep. 362, 55 N. Y. Supp. 988. And he is not bound to accept the bid of an insolvent or irresponsible person: Hobbs v. Beavers, 2 Ind. 142, 52 Am. Dec. 500; Taylor v. Harnett, 26 Misc. Rep. 362, 55 N. Y. Supp. 988; nor of an infant: Kinney v. Showdy, 1 Hill, 544.

The general rule is that an announcement that a person will sell his property at public auction to the highest bidder is a mere declaration of intention to hold an auction at which bids will be received, and that a bid is an offer which is accepted when the hammer falls, and until the acceptance of a bid is signified in some manner neither party assumes any legal obligation to the other. At any time before the highest bid is accepted, the bidder may withdraw his offer to purchase or the auctioneer his offer to sell: Anderson v. Wisconsin Cent. Ry. Co., 107 Minn. 296, ante, p. 462, 120 N. W. 39, 20 L. R. A., N. S., 1133.

j. Disputed Bid.-When a bid is fairly claimed by two or more persons, it is proper to put the property up again at the price bid, and as the bid of such one of the competitors as the auctioneer may declare entitled to it: Conover v. Walling, 15 N. J. Eq. 173. Other cases bearing on this question are McMasters v. Atchafalaya R. R. etc. Co., 1 La. Ann. 11; Warehime v. Graf, 83 Md. 98, 34 Atl. 364; Ives v. Tregent, 29 Mich. 390.

k. Withdrawal of Bid or of Property.-At any time before the fall of the hammer a bidder may withdraw his bid or the vendor may withdraw his property; until that time there remains opportunity for either party to repent: Hibernia Sav. etc. Soc. v. Behnke, 121 Cal. 339, 53 Pac. 812; Grotenkemper v. Achtermeyer, 11 Bush, 222; Pike v. Balch, 38 Me. 302, 61 Am. Dec. 248; Dunham v. Hartman, 153 Mo. 625, 77 Am. St. Rep. 741, 55 S. W. 233; Fisher v. Seltzer, 23 Pa. 308, 62 Am. Dec. 335; McPherson Bros. Co. v. Okanogan, 45 Wash. 285, 88 Pac. 199, 9 L. R. A., N. S., 748; Blossom v. Milwaukee etc. R. R. Co., 70 U. S. (3 Wall.) 196, 18 L. ed. 43. While this is believed to be the better and generally accepted view, there are authorities which incline to the contrary. An exhaustive review of the decisions and a lucid presentation of the law on this question will be found in Anderson v. Wisconsin Cent. Ry. Co., 107 Minn. 296, 120 N. W. 39, ante, p. 462, 20 L. R. A., N. S., 1133.

1. Entry of Memorandum of Sale.-Auction sales are within the statute of frauds, and hence a sale at auction is not complete until a memorandum thereof is entered in writing. For the purpose of entering this memorandum, the auctioneer is regarded as the agent of the buyer as well as of the bidder. He should make the entry contemporaneously with the sale, for if he delays the bidder may with