Thompson v. Davies
13 Johns. 112
N.Y. Sup. Ct.
1816
Check Treatment
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 obtainеd judgment and execution, and by the further' circum-, stance that hе yms indebted to the defendant., The consideration for the..dеfendantV,promise' was, a forbearance, on the' рart 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 оwn execution, which; it is ayer* -ged, lie. did, and that such fcsid w^s more thán the value thprpofi

*115The consideration was sufficient. I ‍​‌‌‌‌​​‌​‌​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​​​‍agrеe 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 estatе, he waived it, on the latter, to his disadvantage, by bidding ‍​‌‌‌‌​​‌​‌​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​​​‍more, on the personal property, than its value, so that here wаs an actual loss to the plaintiff.

Whatever may have been the motives of the parties, in making the agreement, аnd 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 ‍​‌‌‌‌​​‌​‌​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​​​‍cоmpetition was contrary to public policy, and the interests of the original debtor, whose property was liablе 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 sаles at' auction; but the principle applies with equаl, nay, with more, force to sales on execution.

It has been urged that the plaintiff was not bound to bid on the second еxecution, and was, therefore, at liberty to enter into this agreement. That is not the test of the principle. In none оf the cases cited was the party bound to bid; but, being at liberty tо bid, he suffered himself to be bought off, in a way which might prevent a fаir competition. The ‍​‌‌‌‌​​‌​‌​​​​‌​‌​‌​​​​​​​​​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​​​‍abstaining from bidding, upon concert, аnd 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 combinatiоn among persons competent to bid, silencing such bidders, fоr 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 *116judges 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.