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Caller.

It appears then that the case of Thompson v. Davies, in JULY 1929. which the opinion of judge Spencer, from which the above

Carrington extract is taken, was delivered, did not turn upon its being a sale under execution, relative to which the agreement was made, which was declared void, but that it is equally illegal to combine for the purpose of putting down competition at any auction sale, because such combinations tend to cause a sacrifice of the praperty thus sold.

It is unnecessary to enter into a labored train of reasoning to support this decision; its propriety is too apparent. But were it of a more doubtful character, the decisions are too uniform, and the principle too well settled, now to be disturbed. a

a See Cowper

34:3, 6 Term It is now necessary to inquire, does this rule apply to a Rep. 642. sale of lands at auction by the United States? It is urged that the government is interested in fostering the interests of its citizens and securing their prosperity; that it is not consistent with these objects nor good policy, that it shculd sell its domain at high prices to the citizen; and that establishing a minimum price, proves that nothing more is expected or demanded by the governinent;therefore any coinbination intended to secure the lands to the purchasers at the minimum price, is perfectly consistent with the policy of the government, and of consequence lawful.

It might if necessary be replied in this instance, that the facts of the case do not show a disposition, on the part of the ruling spirits of this company, to secure to the citizens at large, the purchase of the government lands at the minimum price, and thus to promote the prosperity of the country, by securing the comfort and pecuniary independence of the citizen: on the contrary, the manilest chject of the company was to swell their own cofiers by vniust exactions from others. Else why by threats and proniises deter the humble settler from securing the place on which his cabin and his family were situated, at the government sale? Why require that he should not bid, but that ihe land should be all purchased, which was of any value, by this monopolizing company? Why exact from him a large advance, generally one hundred per cent at least, for the privilege of paying the amount demanded by the goverument, for the land which he wanted to live upon and to cultivate? Whatever may have been the intentions of the government, these facts afford but little proof that this company wished to advance the prosperity of the citizens generaliy, by enabling them to obtain lands at the minimum price.

JULY 1829.

V.

But in judging of the policy of the country, we are not

to be governed by opinion and speculation, when there is Carrington

- plain law to guide us. The acts of Congress evince that Caller. it is not the intention of the government to invest its citi- zens with titles to the public lands at the lowest specified

price, but that the lowest price is specified to secure, so far as is practicable at a public sale, the real value of the land.

Nothing is more common than for a person who offers his property for sale at auction, to make it known to bidders that a price is fixed on, below which it will not be permitted to be sold. Yet who has ever understood that this was proof that the owner wished no higher price to be bid? Surely it gives conclusive evidence to the contrary; nor has it ever been supposed that a combination to prevent competition, where there was such limitation of price would be less illegal, than in other cases.

If it had been the policy of the United States to dispose of their lands at two dollars per acre, and no more, it would have been easy for Congress to have made this intention obvious, nay it would have been easy to have effected the object. It would only have been necessary to have permitted entries to have been made at this price, and complete effect would, at once, have been given to such intention. On the contrary, efforts which have been made to obtain the passage of such a law, and there have been many, have proved unavailing. It is evident to me that the object of the government, as declared by its laws, has been to sell the public lands for the highest price they would bring, and the minimum price has been established with a view directly in opposition to the one contended for by the counsel for the defendant in error.

The inquiry results then, was this company formed for the purpose of putting down competition at the sale of the public lands at St Stephens?

To show that it was, more perfectly than the evidence proves it, would be impossible. It was the avowed object for which the members composing it associated themselves together; it is expressed in the agreement which bound them together, and it is not only apparent that this was their intention, but equally clear that they were altogether successful. The lands were equally valuable at the time they were sold by the government, as when sold by the company. Only two or three days intervened between these sales; no additional value was given to the lands by improvements put upon them by the company, yet at the , JULY 1829. last sale, it is evident, they must have been bid off at an ad

Carrington vance, probably of several hundred per cent. The witness, Darrington, received in cash at the close of the sale, Caller. by division of the spoils of the company, one hundred and twenty-five per cent. profit, on the amount placed by him in the hands of the committee; and how much more his part of the dividend in the notes came to, we are not informed; but as only one fourth of the sum bid was paid in cash, it is no difficult matter to arrive at a conclusion. The company then did combine to put down competition at the sale of the government lands, and the agreement by which such combination was formed was against public policy, consequently illegal and void.

But although this was the case, yet unless such illegal agreement embraced the sale by the company, unless it formed a part of the contract by which the defendant became a purchaser at the company sale, and in consideration of which purchase he executed the bond sued on, it is no defence to him, and judgment must be rendered for the plaintiff in error. I will now endeavor to investigate this part of the case.

The law which governs this point is so lucidly laid down, and the decisions relating to it are so generally referred to in the case of Armstrong v. Toler, a that it is a 11 Wheat, only necessary to refer to that case for information. In that case the judgment of the Circuit Court, in favor of the plaintiff, was affirmed: but there, it was determined that the contract sued on had no connexion whatever with the illegal one upon which the defendant rested his defence.

The case was as follows: an action of assumpsit was brought by Toler to recover from Armstrong a sum of money paiá by Toler on account of goods, the property of Armstrong and others, consigned to Toler, which had been seized and libelled in the District Court of Maine, in the year 1814, as having been imported contrary to law. The goods were shipped during the late war with Great Britain, at St Johns, in the province of New-Brunswick, for Armstrong, and other citizens and residents of the United States, and consigned to Toler, also a domiciled citizen of the United States. The goods were delivered to the agent of the claimants, on stipulation to abide the event of the suit, Toler becoming liable for the appraised value; and Armstrong's part of them was afterwards de

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JULY 1829. livered to him, on his promise to pay Toler his proportion

of any sum for which Toler might be liable should the Carrington

goods be condemned. The goo is having been condemnCalier.

ed, Toler paid their appraised value, and brought this ac-
ed, Toler paid the
tion to recover from Armstrong his proportion of the
amount. The charge of the judge of the Circuit Court
is given at length in the statement of the case, and noi on-
ly the result of that charge, but the reasoning by which
it is sustained, is dwelt upon considerably by Chief Justice
Marshall, who delivere: I the opinion of the Supreme Court.
We have the point discussed by the Circuit Court, and

which was revised in the Supreme Court, in the following à page 271. words of the Chief Justice: a “The point decided”' (below)

sis, that a subsequent independent contract, founded on a new consideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler when the contract was made, provided he was not interested in the goods, and had no previous concern

in the importation.” The presiding judge in the Circuit b page 261. Court, in charging the jury, thus expresses himself:0 "I

understand the rule, as now clearly settled, to be, that
where the contract grows immediately out of, and is con-
nected with, an illegal or immoral act, a Court of jus-
tice will not lend its aid to enforce it, and if the contract
be in part only connected with the illegal transaction, and
growing immediately out of it, though it be in fact a new
contract, it is equally tainted by it. As if the importation
was the result of a scheme to consign the goods to the
friend of the owner, with the privity of the former, that
he might protect and defend them for the owner in case
they should be brought into jeopardy. I should consider
a bond or promise afterwards given by the owner to his
friend, to indemnify him for his advances on account of
any proceedings against the property or otherwise, to con-
stitute a part of the res gesta, or of the original transac-
tion, though it purports to be a new contract.”

The position taken by the Circuit Court, in this supposed case, is expressly sustained in the opinion of the Supreme Court. Let us test the case before us by it. The obvious meaning of the judge is, that should an illegal agreement contain a stipulation, that something, upon the happening of a contingency, should be done by one of the parties, which is done without such stipulation in the illegal agreement, would form a second and independent contract, its being so supuated in the illegal agreement, would cause it to be tainted by the original consi- JULY 1829. deration, and it would be void.

In the case put, goods are shipped contrary to law, it is Carrington agreed that the consignee shall, when necessary, and if li- Caller. belled, defend them, and that the consignor will indemnify --him for the expenses which may be incurred in doing so. The goods are libelled, the consignee does defend them and pay the expenses consequent on the suit, the consignor executes to him his bond or note for the amount of the expenses thus incurred and paid; this instrument is tainted with the illegality of the importation, and is void. Why is it so tainted? Because it was contemplated by the parties, and provided for in the first agreement. If the goods had been shipped with the simple understanding that the consignee should receive and sell them, and he had paid expenses consequent upon their being libelled, without any previous engagement to do so, and the owner or importer had subsequently promised to pay those expenses, there is no doubt but the execution of this promise might have been coerced at law, although the consignee knew of the illegality of the importation. This, in fact, would have been substantially the case then on trial. And the reason is, that it is lawful for a man to defend a suit of this description, therefore it must be lawful for him to borrow the money to enable him to do so, even of one having a knowledge of the illegality of the original transaction. Thus it appears that an agreement which is entirely innocent in itself, may be rendered illegal and void simply from its being included with one which is against public policy, which is so contaminating, that it taints every thing with which it comes in contact

To apply this to the case before us. The members of the Court all concur in the opinion that the combination to prevent competition in the sale by the United States was illegal, and therefore not binding on those who entered into it. Indeed, this point was so manifestly against the plaintiff, that his learned counsel seemed, in the argument, almost to yield it. But the same agreement by which this combination was formed, contained a stipulation that the land purchased by the company should be immediately resold at auction; it was so resold, and the defendant, as one of the purchasers, made the promise of payment which is the foundation of this action; and it is insisted that this is an independent contract. How independent? Was not the land soll by the express terms contain

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