Thompson v. Davies

Spence#, ;J., delivered the opinion, of the'court. This case is not distinguishable, from that of Jones v. Caswell, (3 Johns. Cas. 29.,) but by the circumstánce that Doughty was indebted to the plaintiff beyond the sum for which he had obtained judgment and execution, and by the further' circum-, stance that he yms indebted to the defendant., The consideration for the..defendantV,promise' was, a forbearance, on the' part of .the plaintiff, to bid, at the sale on the execution in, favour•of the Bunk- -of. -Columbia, on. the lands of Doughty ; and, also; that the plaintiff should bid, on. the sale of the personal estate of Doughty, to the amount of his own execution, which; it is ayer* -ged, lie. did, and that such fcsid w^s more thán the value thprpofi [115] The consideration was sufficient. I agree to the position advanced by Radcliff, J., in the case cited; that the foregoing some advantage or benefit, or parting with a right which might otherwise be exerted, is a valid consideration. The plaintiff, here, not only agreed to forbear bidding, but, having the prior lien, both on the personal and real estate, he waived it, on the latter, to his disadvantage, by bidding more, on the personal property, than its value, so that here was an actual loss to the plaintiff. Whatever may have been the motives of the parties, in making the agreement, and however upright their intentions, the question recurs, is not the promise made by the defendant void, as contravening established principles of public policy ? If the consideration be ever so meritorious, yet, if the act agreed to be done, and which forms the basis of the agreement, be unlawful, the promise cannot be enforced in a court of law. The judges who delivered opinions in the case of Jones v. Caswell held, that the law had regulated sales on executions with a jealous care, and had provided a course of proceeding likely to promote a fair competition,' and that a combination to prevent a competition was contrary to public policy, and the interests of the original debtor, whose property was liable to -be sacrificed by such combinations. The same principle was recognised in Doolin v. Ward, (6 Johns. Rep. 194.,) and in Wilbur v. How, (8 Johns. Rep. 444.) These were'cases of sales at' auction; but the principle applies with equal, nay, with more, force to sales on execution. It has been urged that the plaintiff was not bound to bid on the second execution, and was, therefore, at liberty to enter into this agreement. That is not the test of the principle. In none of the cases cited was the party bound to bid; but, being at liberty to bid, he suffered himself to be bought off, in a way which might prevent a fair competition. The abstaining from bidding, upon concert, and by agreement, under the promise of a benefit forothus abstaining, is the very evil the laV intends to repress. A public auction is open to every one; but there must be no combination among persons competent to bid, silencing such bidders, for the tendency to sacrifice the debtor’s property is inevitable. . ' . The principle is of too salutary a nature to-permit any refinements which go to sap or subvert it; and, in England^ the [116] judges have, uniformly, held a strict hand over, every attempt.at fraud or circumvention at auctions. (Cowp. 395. 6 Term Rep. 642.) The court is, therefore, of opinion that the judgment must be arrested,. Judgment arrested.