#### Thompson *against*Davies.

*A.*and B having executions against C, of which A's execution was the elder líen, and C. being indebted to D , it was agreed between A and D. that A should pay i). 225 dollars ; that, at the sale under the executions* - A. should bid off the personal property of C. to the amount of bis execution, and that D. should hid off the real property of CM to the amount of B’s execution, should dispose of the same- and after satisfying ?Hs own demands against C. should refund A the said sura of 225 dollars. A. and B , at the sale, bid off the property of C in conformity to the agreement,' and D. disposed of the real estate, and,'-after satisfying his own demands against C., there was a sufficient surplus to repay A., and A. brought his action to recover the money Held, that although here was a sufficient consideration to support D’s promise, yet that the agreement itself was void, being contrary to public policy, as it was an agreement tending to prevent compettion at a sale under execution and thus injurious to the original debtor.

THIS was a motion in arrest of judgment. The declaration # 4 . . was *n *assu^psit,*and contained six counts, on a special agree. ment.

The first count stated, that on the i 1th *of July,*Í808, a *fi.fa.*was'issued out of this court, at the suit of the plaintiff, against one *Doughty,*for 765 dollars debt, and 14 dollars and 60 cents ■damages, to the sheriff of the county *of Dutchess,-*by an endorsement on which the sheriff-was directed to levy 381 dollars and 87 cents debt, with interest, and 17 dollars and 91 cents costs ; and that, on the 11th of *July,*1808, another /. *fa.*was issued out.of this court,- at the suit of the bank of *Cólurñbia,*against the said *Doughty,*for 994 dollars debt, and 15 dollars and 25 cents damages, to the' sheriff of *Dutchess,*by aii endorsement op which he was directed to levy 447 dollars debt, with interest,, and 18 dollars and 56 cents costs, which last-mentioned writ was younger than that in favour of the; plaintiff, as to its lien, both on the real and personal property of *Doughty;*by virtue of these writ's, the .sheriff levied upon all the ^ personal property of *Doughty,*and, also, upon a certain farm,.and'exposed the same to public sale; that before the time of the sale the. defendant,, as one of the firm, off *William Davies Sc Co.,*and ^Ie plaintiff, had endorsed a- cértain note for *Doughty,*at the bank *of Columbia,*for the sum of 500 dollars, which noté was paid and satisfied to the bank, by a note of the same amount drawn by the plaintiff and given to the bank ; *that, at*that time, the defendant had divers large demands against *Doughty*amounting to a large sum, to. wit, the súm of 1,000 dollars, or upwards, and the personal property not being sufficient to sa- . tisfy the plaintiff’s execution, and, on the 28th or September, 1808, the real and personal property ot *f) oughty*being offered -for sale by the sheriff, it was thereupon agreed between the plaintiff and defendant,, as follows : the plaintiñ agreed that *he*would bid at the sale,-for the personal- property, to the amount ¿jue on the/./tí. in his favour, and would permit the- real pro. perty to. be bid off by the defendant, under *the fi. fa.,*in favour of .the bank of *CoUmfia,*and that he would pay to the defend-. *113ant the sum of 225 dollars, part of the sum of 500 dollars above mentioned; in consideration of which promises, the defendant agreed to pay to the plaintiff the sum of 500 dollars, or that he would take up and discharge the note for that sum, given by the plaintiff to the bank of *Columbia ;*and that he would bid off the real estate under the execution of the bank of *Columbia,*to the amount due on the same, and would dispose of the same to the best advantage, and, after satisfying himself out of the proceeds, should, out of the residue, repay to the plaintiff the said sum of 225 dollars. And the plaintiff averred that, in pursuance of the agreement, he did, on the 28th of *September,*pay to the defendant the said sum of 225 dollars, by giving him his note, payable on demand, with interest, which note has since been paid; and did, on the sale, bid up the personal property to the amount of, and in satisfaction of his execution; and that, at the sale, the defendant bid off the real estate under the execution of the bank of *Columbia,*and the same was conveyed to him *by*the sheriff; that, afterwards, and in, or about, the month of *February,*1809, the defendant sold the real estate for a large sum of money, to wit, the sum of 3,000 dollars, -or upwards; and the plaintiff averred, that all the demands of the defendant against *Doughty*did not amount to the sum which the defendant so received, by a large sum, to wit, the sum of 1,500 dollars, being a surplus more than sufficient to pay the plaintiff the said sum of 225 dollars; by means whereof, &c.

The second count stated the issuing of the two executions before the 28th of *September,*1808, and that the execution of the bank of *Columbia*was for the benefit of the defendant, and was younger than that in favour of the plaintiff, as to its lien, both on the real and personal estate of *Doughty;*that the sheriff had levied upon the personal and real property of *Doughty,*and offered them for sale on that day ; and that, at and before the time of the sale, the defendant had divers demands against *Doughty,*amounting, in the whole, to a large sum, to wit, the sum of 1,000 dollars, or upwards ; and the defendant wishing to purchase the real estate free of the plaintiff’s execution, in order to secure the execution of the bank of *Columbia,*and the other demands of the defendant, and the personal property not being of sufficient value to satisfy the plaintiff’s execution, it was agreed that the plaintiff should bid off the personal property at an amount equal to that due on his" execution, in satis? *114faction and .discharge..©f the'same; and that the defendant, would bkí off the real estate .on the execution of.the bank of *Columbia,*and for the amount due' thereon ; and that the defendant would sell the real estate, and if he should obtain for the same;enough, over and .above satisfying, .’all his demands against the said *Doughty,*he would pay to the plaintiff the sum of¡ 225 dollars, which. had been, before that time, paid to the defendant by the plain tiff, .on account of the «¿id *-Doughtyj*that,, at the sale,, the plaintiff bid off the personal property, to an amount sufficient to discharge his execution, and-the .defendant did, thereupon .purchase the real estate, under the execution of-the bank of *Columbia,*which was conveyed to him by the sheriff; that, afterwards, in, or about, the month of *February,*1809,,, the defendant sold, and disposed of the real estate to one *Barton,*-for which hp received, in property or money, #-, large, sum;, to wit, the sum of 3,000 dollars, or upwards; and that, the sum» greatly, exceeded the amount of all the defendant’s demands' against *Doughty,*by 'the,sum of i,5G0 dollars.'being inore than sufficient to pay the plaintiff the sum of 2,25 dollars aforesaid;, by means whereof,'&c., > ,.

The- other four counts were substantially, the same as the se« cond; and the,usual money counts.were added.., - . ' .■■

*P. Ruggles,*in- support of the motion,

cited 3 *Johns. Cas.*29. 6 *Johns. Rep.*194. 8 *J*ohns. *Rep.*444. *Cowp. Rep.*395. 6, *Term Rep.*642.

*Oakley,-*contra.

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

*115The 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 *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.