§ 669. Having considered the subject of contracts which are void on account of fraud, we now come to the consideration that is communicated. I do not mean to state a proposition so general, as that there can be no fraud through the medium of persons employed by the vendors. Lord Rosslyn appears, in Conolly v. Parsons, to doubt whether there can be that species of fraud: whether, in any case, the purchaser can be said to be defrauded merely by being drawn in through eagerness of zeal and competition with others. I do not go that length; for if the person is employed, not for the defensive precaution, with a view to prevent a sale at an undervalue, but to take advantage of the eagerness of bidders to screw up the price, I am not ready to say, that it is such a transaction as can be justified in a court of equity. Neither do I say, that, if several bidders are employed by the vendor, that in such a case a court of equity would compel the purchaser to carry the agreement into execution; for that must be done merely to enhance the price. It is not necessary for the defensive purpose of protection against a sale at an undervalue. I leave those cases to be determined upon those grounds, whenever they may occur. It is sufficient to say, this is not a case of that description. These plaintiffs had not a fraud in contemplation; and were not in a situation that made it peculiarly incumbent upon them to take care not to permit a sale at an undervalue.' Mr. Chancellor Kent, in his learned Commentaries (vol. ii. p. 538, 539, 5th ed.), seems to me to have arrived at the true and just and satisfactory result. ' It would seem,' says he, ' to be the conclusion, from the latter cases, that the employment of a bidder by the owner would or would not be a fraud, according to circumstances tending to show innocence of intention, or a fraudulent design. If he was employed bond Jide to prevent a sacrifice of the property under a given price, it would be a lawful transaction, and would not vitiate the sale. But if a number of bidders were employed by the owner, to enhance the price by a pretended competition, and the bidding by them was not real and sincere, but a mere artifice in combination with the owner, to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale. So it will be a void sale, if the purchaser prevails on the persons attending the sale to desist from biddings, by reason of suggestions by way of appeal to the sympathies of the company.' But, be the general doctrine upon this subject as it may, no case has fallen under my notice, in which it has been held, that the act of the auctioneer in receiving or making false bids, unknown and unauthorized by the seller, would avoid the sale. And upon principle, it is very difficult to see why it should avoid the sale, since there is no fraud, connivance, or aid given by the seller to the false bids. If the purchaser is misled by the false bids of the auctioneer to suppose them to be real, he may have an action against the auctioneer for the injury sustained thereby. But what has the innocent man to do with such a transaction, which he has in no sense sanctioned?" of contracts which are void either for immorality or because they contravene some rule of public policy. And in the first place, as to contracts which the law repudiates on the ground of immorality.
§ 670. All contracts in violation of morality, and founded upon considerations contra bonos mores, are void. All duties enjoined by the divine law are not enforced, indeed, by the common or statute law, not only because its forms and modes of proceeding do not enable it to adjust nice questions of morals, but because strict rules as to ethical questions would tend to destroy freedom of opinion, and to afford opportunities for persecution. But no agreements to do acts, forbidden by the law of God, or which are manifestly in furtherance of immorality, and tend to contaminate the public mind, are tolerated, or can be enforced by the common law. Thus, all contracts, whether they be by parol, or under seal, to pay a certain sum, on consideration of future illicit intercourse (premium pudoris et pu-dictice) are utterly void. The general maxim is Ex turpi contractu non oritur actio.1 Some doubt formerly existed whether an agreement in consideration of a past seduction were not enforceable;2 but it has since been decided that such a consideration will not support a parol promise.3 But a sealed contract, made in consideration of past seduction and cohabitation, or past cohabitation without seduction, can be enforced; not merely because it is binding in honor and conscience, for such a reason is not
See also Rex v. Marsh, 3 Y. & J. 331; 1 Story, Eq. Jur. § 245, and note. So, also, Mr. Chancellor Kent, in his Commentaries, lays down the rule, that "in sound policy, no person ought, in any case, to be employed secretly to bid for the owner against the bond fide bidder at a public auction. It is a fraud on the very face of the transaction." 2 Kent, Comm. 539. See also Baham v. Bach, 13 La. 287. In Twining v. Morrice, 2 Bro. C. C. 326, a specific performance was refused upon the ground that the solicitor of the seller was present, and bid, although he, in reality, did not bid for the seller. See the remarks on that case in Ex parte Lacey, 6 Ves. 629, and Townshend v. Stangroom, 6 Ves. 338. See also the note (b) to Perkins's edition of 2 Bro. C. C. 331. The actual by-bidding of puffers can, as it would seem, only operate upon the buyers as a deceit, or fraud, or surprise, and must always, if it have any influence, be injurious to their interests. The doctrine of Lord Mansfield seems to us to be founded in principle, and to create no practical difficulty; the only objection that has been offered to it, that it might lead to a sacrifice of goods for less than their value, can be easily obviated by the precautions which he recommends, of setting them up at a certain upset price. This rule is also upheld in the Scottish law. In Anderson v. Stewart (16 Dec. 1814), it was held, that a sale made where puffers were employed could not stand. In this case, Lord Glenlee said: "There is good ground for complaint when the price has been raised by unreal and fictitious offers, for, notwithstanding it is said that a person ought to judge for himself, yet he is entitled to redress if any such improper means are used to draw him on. At the same time, this is a very delicate question. A person going to a public sale takes his chance of biddings being made out of frolic, or out of malice, by persons who have no desire to purchase, but, as they run the risk of the property falling in their hands, he must just take his chance of such things. That, however, is a different case from offers which are altogether fictitious, for against any thing of that kind the purchaser is entitled to redress; and I think the offers here were fictitious." In Gray v. Stewart and others (7th Aug. 1753), the same doctrine was held, and in the judgment of the court it is said: "The person who advertises a sale by auction pledges his faith to the public that he is to sell to the highest bidder, and is not to buy for himself. In this case the pursuer was really the highest offerer, seeing the offer of a white bonnet is no offer at all." See also Cicero de Officiis, 1. 3; Huber, Praelectiones, xviii. 2, 7. See, however, Moncrieff v. Goldsborough, 4 Harr. & M'H. 282; Donaldson v. M'Roy, 1 Browne (Pa.), 346; Morehead v. Hunt, 1 Dev. Eq. 35.