¶1delivered the opinion of the court.
¶2This case was submitted upon an agreed statement of facts. The .agreed statement shows that the defendant, as constable, held an execution for levy against one Mary Bowen; that he appeared at an auction sale where certain goods of the execution debtor were being sold at public vendue, and there exhibited the execution and gave notice of a levy of it upon the goods as the property of the execution debtor. A conference then ensued between the auctioneer and the defendant, after which it was publicly announced by the auctioneer, in the presence and hearing of the defendant, that an arrangement had been effected for the sale to go on without interruption, and that the money arising from it would be paid over to the defendant in satisfaction of. the execution in question. The sale proceeded, and the plaintiff made purchases to the amount of $24.74, which he paid to the auctioneer, and the same was applied upon the execution in accordance with the announced arrangement. The 'execution was partly satisfied from the proceeds of the sale. The defendant thereupon levied another and hitherto undisclosed execution upon the property purchased by the plaintiff, and removed it to his (the defendant’s) store or warehouse, and refused to allow the plaintiff *29to take it. This suit is brought, to recover back tbe $24.74 as so much money received by tbe defendant to tbe plaintiff’s use.
¶3It thus appears that tbe defendant made the auctioneer bis agent to sell tbe property and collect tbe proceeds. Tbe property was sold, and tbe proceeds passed into tbe defendant’s custody. He thereupon, in effect, disaffirmed the sale, treated it as a nullity, and retained tbe goods. I think tbe plaintiff was warranted in treating tbe contract of sale as rescinded, and claiming bis money. Tbe action of tbe constable was a mere trick and fraud upon tbe bidders, and should receive no countenance in a court of justice.
¶4Let tbe judgment be affirmed.