UNITED STATES V. VESTAlJ.
When we apply.the law to the stateD;lellt, it shows if these patents issued they have all expired; and therefore there is no subsisting patent upon the machine. or any part of it, and the offence is not complete. of the district couri is affirmed. The
UNITED SUTES fl. VESTAL.
(Dut,*, (Jourl, W. D. NUI1JI, Oarolina. April Term, 1882.)
L lIAnBHAL'8 SALE-RESALE. If an officer, at. an execution sale, fraudulently' refuses to accept the bid of a responsible bidder, such bidder may have the sale set aside and a resale ordered, to commence at the amount of his bid, but he cannot. be declared the purchaser. I. BAMlll-COMPETmON IN BIDS-OFFER TO PAY DEBT. If t.he debtor or any other responsible person for the benefit. of the debtor, offers at the sale to pay the debt, and the officer of the law accepts such offer, the sale may be stopped, and further competition in bidding is unnecessary, as the purposes of the writ of execution have been accomplished, and the highest bidder thereunder has no rights which can be enforced by the court;
This was a rule on the marshal for the oauses and purposes set forth in the opinion of the courl. J. N. StapuB, for rule. J. M. Moring, for marshal. DIOK, D. J. I find the following facts from the affidavits filed: The deputy marshal had duly levied the execution on the lands of th defendant, and on the day of , 1882, offered the same at public auction to satisfy said execution. The biddings were con· tinued for some time, and the affiant Taylor Teague was the last and highest bidder. While the deputy marshal was crying the bid of Teague, the father of the defendant offered to payoff the execution and costs for his son. This proposition was accepted by the deputy marshal and the sale was discontinued. I am of the opinion that Teague acquired no rights by his last and highest bid which can be enforced by the court as the bid was not accepted by the auctioneer. A bid at an auction is but an offer to purchase, and may be withdrawn before it is accepted. To constitute a contract of sale the agreement must be mutually binding upon the parties. As Teague's last and highest bid was not accepted he was not bound by it, and no contract of sale was effected. If
officer at an execution sale fraudulently refuses to accept the highest bid of a'responsible person and accepts a lower bid, the highest bidder can, by an application to the court from which the execution issued, have such sale set aside and a resale ordered, to commence at the amount of his bid; but the court cannot declare him to be the purchaser. The deputy marshal was a public officer acting in obedience to an execution commanding him in the name of the United States to cause to be made of the property of the delinquent debtor a sum of money judicially ascertained to be due the plaintiff in the execution. The levy made by the officer on the lands of the debtor divested neither the possession nor the estate of the debtor, but merely conferred a power of sale for the purposes designated in the execution. In offering the land for sale the officer was acting as a minister of the law, in obedience to its mandate, and could not lightfully exceed his power. That mandate required him to make t4e sum of money mentioned in the execution, and sell the property of the debtor for that purpose, if a sale became necessary. In making a, sale under execution an officer is in some respects the agel,.lt of the debtor, and as such agent it is his duty to make a sale in such a manner as not to sacrifice unnecessarily the property of the debtor, as the law accords to him all the chances Of a fair sale and a full price. Every debtor has a right, at any time before the sale is c'ompleted, to prevent a sale by the payment of the money mentioned' in the execution to t,he officer. In this case a satisfalltory proposition of payment was made to the officer by the father of the defendant, and at his request, and the same was accepted and the offer of sale was withdrawn. It was insisted in the argument that the policy of the'lawin requiring execution sales to be made at public auction to the highest bidder is to encourage competition, and that it will not tolerate any conduct of the officer or any other influence which is calculated to discourage or prevent such fair competition among bidders. This general proposition is correct; but the object of competition among bidders is to secure a fair price for the property, for the benefit of the parties interested in the sale. After a sufficient sum has been obtained to secure the debt of the plaintiff, the debtor is the only one who can be benefited by a higher bid. If he offers to pay the debt of the plaintiff and the officer of the law accepts such offer. there is no necessity for the encouragement of further competition, and the sale may be stopped, as the purpo3es of the writ of execution
PACIFIO GUANO CO. V. HOLLEMAN.
have been accomplished and the debtor does not desire to part with his property. In this case the affia.nt Teague has in no way been damaged, and the execution has been satisfied without the sale of the lands of the defendant. If there had been a sale to a lower bidder and the officer had acted frauduleutly or irregularly, we have already stated what would have been the right and remedy of the highest bidder. There is inherent in every court a power to supervise the conduct of its officers and the execution of its judgments and processes. The court can set aside a sale and order a resale, but cannot declare a bidder to be a purchaser-the contract of sale must be made by its ministerial officer. As the execution in this case has been returned satisfied and the money has been paid into court, I decline to grant the prayer contained in the affidavit of Teague, and the rule heretofore granted is discharged, without costs to either party. .
(Circuit Court, S. D. GWJ'gia, W. D.
blay 15, 1882.)
PROMISSORY NOTE MADE TO AGENT.
A corporation may su!l on a promissory note payable toihe order of its agent byname, and deserilJing him as " agt.," and not indorsed by the agent.
'2. SAME-PAROL EVIDENCE OF OWNERSHIP.
Parol evidence is admissible to show that the corporation, suing as plaintiff, is the owner of the note.
Action at Law, upon the following note:
"$419.30. BYRON, GEORGIA, April 23,1875· .. On the twentieth of October, after date, I promise to pay to the order of Asher Ayres, agt., $419.30, to T. B. Goff, or at his office in Macon, Georgia; value received. If not paid at maturity, to veal' interest at the rate of 12 per cent. discount per annum. D. II. HOLLIDL\X." [L. so]
Defendant demurred to the petition, which set out a copy of the note, and which alleged that the defendant gave the same to Asher Ayres, agent of the plaintiff. Defendant also filed a plea, in the form of a plea to the jurisdiction, denying that the Pacific Guano Company had the legal title to the note, and &lleging that the same
-Reported uy W. B. Hill, Esq., of the Macon bar.