the Crown, Mr. E. Driver should be at liberty to make one bidding, but no more, and if the highest bidder, the sale to be void ;" and a puffer was employed at the auction by Mr. Driver, the agent for the Crown; the court held that the sale was not binding upon the purchaser. The Court considered it clear, that in an ordinary case the employment of a puffer vitiated the sale, and there was no reason why the Crown should be subject to a different rule(v). But we cannot fail to perceive that in this last case the condition was pregnant with a negative, that no puffer should be employed. The strong leaning of the courts, however, is at present against the validity of a sale where even a single puffer is employed, although after the decisions to the contrary upon this point, which are daily acted upon, it would be difficult to come to such a conclusion, except in the House of Lords.

Although an original purchaser will not be bound where a fraud has been practised in the biddings, yet if he transfer his contract, a strong case of fraud must be made out against the original purchaser, to enable the court to give the benefit of it to his assignee, who was not induced through competition to give the price (v).

If the particulars or advertisements state (as they frequently do) that the estate is to be sold without reserve, it seems clear that the sale would be void against a purchaser, if any person were employed as a puffer, and actually bid at the sale. This was actually decided in the late case of Meadows v. Tanner(w). The Vice-Chancellor said, that the plain meaning of the words without reserve, in a particular of sale, is, that no person will be employed to bid on behalf of the vendor for the purpose of keeping

(v) 3 You. and Jer. 331, and see Crowder v. Austin, 3 Bing. 368, 11 Moo. 283.

(v) See 12 Ves. jun. 484.

(w) 5 Madd. 34.

up the price; and that the vendor could have no claim to the aid of a court of equity to enforce a contract against the purchaser, into which he might have been drawn by the vendor's want of faith.

It is generally understood, that some person will bid on the part of the owner; and it therefore seems to deserve consideration, whether it would not, in most cases, be advisable to give public notice of the owner's intention previously to the sale. Where public notice is given, the mode least liable to objection seems to be that of reserving a bidding, or stipulating in the conditions of sale, that the owner may bid once in the course of the sale(x). It may here, however, be proper to observe, that buying-in an estate, especially where it is done without public notice, mostly prejudices a future sale. This was exemplified in the sale of an estate before one of the Masters in Chancery, where 23,000l. was bona fide bid, and the estate was bought in by the agent of the vendor; afterwards there were three other sales in the Master's office; and the consequence of the estate having been bought-in deterring others from bidding, was, that on the two first occasions no more was offered than 12,000l. and 6,000l.; and the estate finally sold for 15,000l.(y)

On the other hand, if a purchaser by his conduct deter other persons from bidding, the sale will not be binding. Thus, where upon a sale by auction of a barge, a bidder addressed the company present, saying he had a claim against the late owner, by whom he said he had been ill used, whereupon no one offered to bid against him; but the auctioneer refusing to knock down the property to a single bidding, a friend of the bidder's bade a guinea more, and the first bidder then made a

(x) See Cowp. 397.

(y) See 6 Ves. jun. 629; Wren v. Kirton, 8 Ves. jun. 502; and see Twining v. Morris, 2 Bro. C. C. 326.

second and higher bidding, amounting, however, to only one fourth of the prime cost of the barge; it was held that there was no legal sale(z). (3).

III. The particulars and conditions of sale(a) next

claim our attention.

It seems that the Judges will so construe them as to endeavor to collect the meaning of the parties, without

(z) Fuller v. Abrahams, 3 Brod. & Bing. 116; S. C. 6 Moo. 316. (a) See a form of them, App. No. 4.

(3) Where there was an agreement by the owner of an execution, with certain other persons, to prevent the usual competition at a sheriff's sale, in order to leave a balance on the execution, for the purpose of seizing other lands of the debtor, whereby the property was sold for a mere nominal price, it was held, that the sale was void. Troup v. Wood, 4 Johns. Ch. Rep. 228, 254. See Brodie v. Seagroves, 2 Hayw. 70.

So, where two persons, being desirous of purchasing certain articles advertised for sale at auction, agreed not to bid against each other, but that one of them should bid in the property, which should be divided between them, it was decided, that such agreement was without consideration and void, and against public policy. Doolin v. Ward, 6 Johns. Rep. 194. See Wilbur v. How, 8 Johns. Rep. 346. 2d edit. Thompson v. Davies, 13 Johns. Rep. 112. Jones v. Caswell, 3 Johns. Cas. 29.

So, a purchase, by an executor or administrator, of the estate of the testator or intestate, where others were deterred from bidding in consequence of doubts as to the title, suggested by the purchaser, whereby he obtained the property at an undervalue, will be annulled in equity. Hudson v. Hudson, 5 Munf. 180. See Wood's Exr. &c. v. Hudson, 5 Munf. 423.

And where the advertisement of a sale, contains an assertion which is false, as, that the land is to be sold for the satisfaction of three mortgages, when there are two only, by which purchasers may be deterred from bidding the sale will be deemed irregular and void. Burnet v. Denniston, 5 Johns. Ch. Rep. 35.

encumbering themselves with the technical meaning of the words.

Thus where(b) the city of London let an estate by auction for a term of years, according to certain conditions of sale, by which it was stipulated that the purchaser should pay a certain rent before the lease was granted, which he accordingly agreed to do, the Court of King's Bench held that although the money to be paid could not be strictly called a rent, the relation of landlord and tenant not having then commenced, yet the parties intended the money should be paid, and it must be paid accordingly. Lord Kenyon said, he had always admired an expression of Lord Hardwicke's, "that there is no magic in words." But an agreement for purchase, with a stipulation, that until the conveyance is made the purchaser shall pay and allow to the seller at the rate of a fixed sum per annum, three half-yearly payments will create the relation of landlord and tenant, and the sum payable will be recoverable as rent(c).

Great care, however, should be taken to make the particulars and conditions accurate; for the auctioneer cannot contradict them at the time of sale, such verbal declarations being inadmissible as evidence(4).

Thus, where estates were put up to sale by auction(d), and in the printed particulars of sale were stated to be free from all incumbrances, they were bought by a person who, discovering that there was a charge on the estate of 177. per annum, refused to complete the purchase, in con

(b) City of London v. Dias, Woodfall's L. & T. 301.

(c) Saunders v. Musgrave, 6 Barn. & Cres. 524; S. C. 9 Dowl. & R. 529.

(d) Gunnis v. Erhart, 1 H. Black. 289; see Jones v. Edney, 3 Camp. Ca. 285, 6; Bradshaw v. Bennett, 5 Carr. & Pay. 48.

(4) See Grantland v. Wight, 2 Munf. 179, contra, ut semb. Wright's Les. v. Dickline, 1 Peter's Rep. 199.

33

sequence of which, an action was brought by the vendor; and although he offered to give in evidence, that the auctioneer had publicly declared from his pulpit in the auction-room, where the estate was put up, that it was charged in the manner above specified, yet the court of C. B. refused to admit the evidence, as it would open a door to fraud and inconvenience, if an auctioneer were permitted to make verbal declarations in the auction-room, contrary to the printed conditions of sale; and the plaintiff was nonsuited. And this rule prevails in favor as well of the (*)seller as of the purchaser(e), and it equally applies to a sub-sale; therefore, if A. buy at a sale after a formal explanation at the sale, which was heard by B., and then re-sell to B., the first declaration is no more binding upon B. than A., and therefore A. cannot enforce the contract, as explained by the auctioneer, against B.(ƒ).

The same rule of course prevails in equity, where the person setting up the parol evidence is plaintiff. Upon the sale of an estate by auction the particular was equivocal as to the words: but it was clear the purchaser was to pay for timber and timber-like trees. There was a large underwood upon the estate. At the sale, the article being ambiguous, the auctioneer declared he was only to sell the land; and every thing growing upon the land must be paid for. The defendant, the purchaser, insisted he was only to pay for timber and timber-like trees, not for plantation and underwood. The declaration at the sale was distinctly proved; but it was determined by the Court of Exchequer that the parol evidence was not admissible(g)(5).

(e) Powell v. Edmunds, 12 East, 6.

(f) Shelton v. Livins, 2 Crompt. & Jer. 411.

(g) Jenkinson v. Pepys, 6 Ves. jun. 330, cited; 15 Ves. jun. 521, stated.

(5) But, it seems, that a purchaser of an estate at auction, is bound 5 (*32)

VOL. I.