Sangamon County IL Archives Court.....Webster, V French 1849
************************************************
Copyright.  All rights reserved.
http://www.usgwarch.org/copyright.htm
http://www.usgwarch.org/il/ilfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 22, 2008, 9:46 am

Source: Reports Of Cases Illinois
Written: 1849

Bela C. Webster and George L. Huntington v. Augustus C. French et al. 

Error to Sangamon.

1. Sale — secret bids, fairness. Where sales are made upon secret bids 
(candlestick biddings), or sealed proposals, as well as in sales by open bids, 
any thing which prevents fair competition, or tends to give one party an 
unfair advantage over another, will be discountenanced.

2. Same. The law requires good faith and fair dealing, as well in cases of 
sale by sealed proposals, as by open bids. In both cases, effects and 
consequences are to be considered, in determining what fair dealing and the 
true intent of the transactions require.

3. Parties to suit — chancery. As a general rule in chancery, all parties 
interested in the object of the suit must be made parties, before the court 
will proceed to a final determination. (1) This rule is not an arbitrary and 
inflexible one, but is adopted as a matter of convenience, for promoting the 
ends of justice; and whenever its application would defeat those ends, the 
rule itself must generally give way.

4. Tender — rule in chancery. A court of chancery is not bound by any fixed 
rule, in relation to the tender of money. The money may at any time be ordered 
into court, when the rights of a party require it. It is time enough for a 
party to bring purchase money in to court, when he is called upon to do so.(2)

5. Cases — reconsidered. The ruling of this court on the subject of tender of 
money, in the case of Doyle v. Teas, in 4 Scammon, 202; DeWolf v. Long, in 2 
Gilman, 679, and in Wright v. M'Neely, in this volume, p. 603, reviewed and 
reconsidered.

This was a bill filed in the Sangamon circuit court, to enforce a conveyance 
of the Quincy House to the complainants.

The state of Illinois was the owner of the Quincy House property, in Quincy, 
Adams county. An act authorizing a sale of this property, was passed February 
12, 1849. See Laws of 1848-9, p. 107. The governor was directed to sell, for 
state indebtedness, to the highest and best bidder, after advertising, etc.; 
payment for the purchase to be made in three instalments; the first on the day 
of sale, the second in one year, and the third in two years thereafter.

The governor was required to receive sealed bids from all persons, until first 
July, 1849, and at that time to open and compare the bids in the presence of 
the secretary of state and treasurer; who should then declare the highest 
responsible bidder to be the purchaser. The purchaser, on payment of the first 
instalment, to receive a certificate of purchase, which should entitle him to 
a deed, on the payment of the other two instalments. "Upon the payment of the 
whole amount, the governor was authorized, in his official capacity, to 
convey, by deed, all the right, title and interest which the state had in the 
property.

The governor advertised according to law. The first day of July being Sunday, 
the opening of bids was deferred until the succeeding day. On opening and 
comparing the bids, it was found that Jacob Bunn had bid $15,250; E. A. 
Thompson $17,000; John W. M'Fadden, John R. Webster and W. W. B. Powers 
$17,000; C. A. Warren $17,250; B. O. Webster and Geo. L. Huntington $21,100. 
There was also found among the papers opened, a proposition from Henry Root & 
Co., (composed of Root, Rodgers and Holmes.) as follows:

"We, the undersigned, propose to pay the State of Illinois five hundred 
dollars more than any bid made for the Quincy House property, up to 10 
o'clock, A. M., 2d July, 1849. "Henry Root & Co."

And also the following from Ash & Diller (composed of Horace F. Ash and Isaac 
R. Diller); 

"We, the undersigned, propose to give for the said Quincy House and property, 
the sum of six hundred and one dollars over and above the highest bid of the 
highest responsible bidder for said house and property, made according to the 
advertisement of the governor.
"Ash & Diller." 

The bid of Webster and Huntington being the highest specific amount, the 
governor added thereto the five hundred dollars excess proposed to be given by 
Root & Co., making $21,600, and to this aggregate sum added six hundred and 
one dollars, the excess proposed to be given by Ash & Diller, making a total 
of $22,201. And, at this sum, awarded the property to Ash & Diller.

Ash & Diller did not, as required by law, pay the first instalment on the day 
of sale, and give the security, nor offer to do so, for the payment of the 
other, but instead thereof, gave their bond to do so at a future day. In about 
fifteen days, they tendered the first payment, and the necessary obligations 
for the payment of the other two, which the governor received for safe 
keeping, but declined to give a certificate of purchase, until he should 
become satisfied as to their right to receive the property.

Webster and Huntington, on the day of sale, offered to pay the first 
instalment, and give proper and acceptable security for the others, as 
directed by law; but the governor refused to receive the same, stating that he 
had determined to accept the proposal of Ash & Diller. And for greater 
caution, and to preserve as far as possible their equitable rights, did, on 
the succeeding day, (and before Ash & Diller had made either payment or 
tender,) tender to the governor the first instalment and security (admitted by 
him to be sufficient) for the other two, which he again, and for the reasons 
before given, refused to accept. Afterwards, the governor, on payment of the 
amount at which he had awarded the property to Ash & Diller, to wit, $22,201, 
conveyed by deed to them, and they to Philip C. Johnson; their proposal having 
been filed by his consent and procurement, and he being privy to all the 
proceedings and equities involved in the premises, and a purchaser with full 
notice.

The cause coming on to be heard at the August term of the Sangamon circuit 
court, 1849, the default of Root, Rodgers and Holmes was entered, and judgment 
pro confesso taken as to them. The governor, by his counsel, and Ash & Diller 
and Johnson, by their counsel, severally filed demurrers to the complainants' 
bill. It was stipulated by the parties, for the purpose of bringing this case 
properly before this court, that the circuit court, Davis, judge, presiding, 
should pro forma sustain the demurrers, and dismiss the bill. To reverse this 
decision, and to set aside the conveyances from the governor to Ash & Diller, 
and from them to Johnson, and to compel a conveyance to the complainants for 
the sum proposed to be given in their bid, is the object of this writ of error.

S. T. Logan, for plaintiff in error.

Lincoln & Herndon, on the same side, presented the following points and 
authorities: This bidding of Ash & Diller, of six hundred dollars more than 
the highest bid, is not a specific bid. It is a gambling business - a stock 
jobbing transaction — an evasion of the law, and a total subversion of the 
manifest intention of the legislature. Laws of 1849, page 107; 2 Kent, 536, 
540; 5 Gilman, 513. The bidding of plaintiffs in error is a contract, and a 
bill for specific performance will lie. Mandamus is not the proper remedy, but 
only a bill for specific performance. Chitty on Contracts, 238, 239; 2 Kent, 
537, 538; Story on Contracts, secs. 322, 323, 341, 342; Story's Eq. Jur., 
secs. 713, 714, 715, 716; Babington on Auctions, 30, 159, 162. The government 
is the agent of both parties. Laws of 1849, page 107; 2 Kent, 539; Story on 
Contracts, sec. 319. This contract will be enforced and decreed, although the 
state cannot and is not a party in the bill, and the state has an interest in 
the result of the suit. 5 Condensed U. S., 766; 9 Wheaton, 738; 1 Douglass' 
Mich. E., 527; 1 ibid, 225. This tender was in due time, and was properly kept 
by Webster and Huntington. 24 Pickering, 168.

M. Brayman, for plaintiffs in error, submitted the following points and 
authorities: 1. The policy of open sales at auction, is to produce competition 
by disclosing to each bidder the sum bid by his adversary, and giving him an 
opportunity to advance upon that sum. Each bidder has before him a certain sum 
against which to bid, so that in each case, to make a bid is to name a sum. 
Even if one offers to give so much over the highest bid, his offer is a good 
bid, because it follows a bid of a definite sum, already known, and is 
susceptible of instant computation, or rather requires no computation. 2. The 
policy of sales, upon sealed or secret bids, is to stimulate purchasers to bid 
high, by concealing from each a knowledge of the bid of all others, and 
compelling them to inquire and bid according to the real value of the 
property, without the chance of bidding again, after the first failure. All 
collusion and fraud being impossible, by reason of their bids being secret, 
each is compelled to offer, at first, the full amount he is willing to give. 
The highest bid takes the property, and if there is but one bid, it is the 
same. 3. At the moment appointed for opening bids, all stand upon the same 
footing. No one has precedence of another. In contemplation of law, they are 
opened and their contents announced at the same time. And the right of the 
highest bidder to have the property awarded to him, accrues instantly; for the 
transaction is in the nature of a bargain and sale, where a written proposal 
has been made by the vendor, and accepted in writing, according to its terms, 
by the vendee. 4. Furthermore, no proposal, which does not respond to the 
advertised terms, by naming a distinct and certain sum, can be deemed a bid; 
for it is, of itself, not susceptible of definition or computation. To be 
recognized as a bid, a proposal must contain a distinct proposition, which can 
be acted upon, taken alone, and without reference to any thing out of itself. 
For example, a proposal is filed to give one dollar more than any other bid, 
and there is no other bid; or suppose all the proposals, no matter how many, 
are of the same character. The result would be no sale. 5. It follows, then, 
that the bid of Webster and Huntington, was, at the moment of opening, the 
highest and best, and that their right to have the property awarded to them, 
then became perfect. It also follows that the proposal of Ash & Diller was not 
a valid, perfect bid, entitled to be noticed. It could not afterwards be 
perfected by comparison with good bids, so as to make it available; for the 
time for receiving bids had gone by. It must stand as it stood at first. Gov. 
French had no more right to perfect it and give it retrospective effect, so as 
to cut off the right of Webster and Huntington, than he had to permit a 
written alteration of a bid for the same purpose. 6. The character of the bids 
was, at the moment of being opened, fixed and determined by their own terms; 
and it was the duty of the governor to declare the fact. Like an auctioneer, 
he was, for the purpose of the sale, the agent of both parties. It will be 
contended that, in receiving and opening bids and announcing the result, the 
governor performed an executive duty. It is not so. Signing bills passed by 
the general assembly, granting pardons, and various other acts of a like 
character, devolving on the executive office by the constitution, imply the 
exercise of a discretion, which may not be questioned in a proceeding like 
this; but, putting an advertisement in a newspaper, taking letters out of the 
post office, opening them and reading aloud their contents, in the hearing of 
parties interested therein, can scarcely be said to be executive functions, 
around which the constitution and the common law have thrown such solemn 
safeguards. A sheriff, a master in chancery, a special commissioner, or 
Richard Roe, by name, could have performed the duty as well under the law; and 
the fact that the person selected to perform it was governor of the state, did 
not take the case out of the common rule, or invest it with additional 
sacredness. The making of the deed, however, was required to be done by the 
governor "in his official character" — that being a duty imposed by section 25 
of article 4 of the constitution, and an executive act. As to executive 
discretion, see Marbury v. Madison, 1 Cond., 274-5-6-7. As to judicial 
discretion, see 1 Cond., 19, and notes. 7. Objection is made to this form of 
proceeding, because it affects, though indirectly, the interests of a 
sovereign state, and shelter sought behind the constitutional exemption of 
states from suit. But, the case of Osborne v. The Bank of the United States, 5 
Condensed Rep., 760, so clearly develops the true doctrine on this point, as 
to remove all doubt, and to prove that an aggrieved party can not be barred of 
his remedy, because a state may be affected, even though it be in a more 
direct maimer than in the case at bar. 8. The law requires that the purchaser 
shall, on the day of sale, pay one-third of the purchase money, and give 
security for the balance. Ash & Diller did neither of these things. They were 
not, therefore, in contemplation of law, "responsible bidders." Their 
proposals should, therefore, have been rejected, even though their bid had 
been a valid one.

Stuart & Edwards, with whom was W. I. Ferguson, presented the following points 
and authorities: This is a bill for a specific performance of a contract. In 
order to maintain the bill, two things must occur: First, there must be a 
contract, and, second, a person contracting, from whom, by its process, this 
court can coerce the performance of the contract sought to be enforced. I deem 
this proposition self evident. If there is no contract according to the legal 
meaning of the term, there is nothing for this court to enforce, at least upon 
a bill of this nature. If the person who alone could not, by any process 
within the power of the court, be compelled to perform it, then this court 
will refuse to interfere. It is a settled principle in equity not to interfere 
where no decree for the specific performance of the whole agreement can be 
made.

This bill is without a parallel, except partially in one case, in the whole 
history of jurisprudence. In this particular case, the aid of the court is 
sought to review and control the acts of the executive, parts of which are 
admitted to be official. It is not unreasonable to require that the gentlemen 
should adduce some authority in support of their view of the case; and if that 
authority can not be found in some adjudicated case, it, at least, should be 
shown that some clear right of the complainants has been violated, and that 
some equally clear principle of equity requires that this court should assist 
them in the maintenance of that right.

The legislature has seen proper to confer certain authority upon the 
executive; not upon the individual, but upon the individual in his official 
capacity. In so doing, they, as representatives of the people, have reposed 
confidence in the judgment, the discretion and integrity of that officer, and 
when this court attempts to reverse the acts of that officer in the exercise 
of the power conferred by the legislature, the power of the court should be 
incontrovertible, and the right of the party complainant indubitable. The 
state is a necessary party, and as no suit could be maintained against it, the 
court has no jurisdiction. As to parties, Story's Eq. Pl., sec. 81; Walker's 
Mich. Rep., 9. The case of Osborne v. Bank of U. S., 5 Con. U. S., 766, is no 
authority against this position. The property involved in this controversy is 
the property of the state. Her interest is direct and immediate; not a mere 
passive subject of the jurisdiction, but is, if this suit is maintained, 
required through her agent to be an active party in carrying out the decree. 
When the suit seeks to divest the title of the government, the court of 
chancery can not entertain jurisdiction. 1 Daniel's Ch. Prac, 104; 2 Sch. & 
Lef., 616-17. By the act of the legislature, the governor was to decide on the 
character of bids and bidders; he was authorized to make the award, and his 
decision is final. Under the United States land laws, the decisions of 
registers and receivers are final; and so of other officers, commissioners, 
etc. M'Connell v. Wilcox, 1 Scammon; 3 Merrivale, 472; Bennett v. Farrar, 2 
Gilman, 601. The decision as to the character of bids, and responsibility of 
bidders, is dependent upon the discretion of the governor. From that decision 
no appeal has been provided. It is, therefore, conclusive, unless impeached 
for fraud. Le Roy v. Corporation of New York, 4 Johns. Ch. Rep., 352; Moore v. 
Smedley, 6 J. C. R., 28; Walker v. Devereaux, 4 Paige, 249; Rex ex rel. Scales 
v. Mayor and Aldermen of London, 3 Barnwell & Ad.; Patterson v. Mayor, etc., 
N. Y., 1 Paige, 114; Phillips and others v. Wickham, ibid, 590; Champlin v. 
Mayor, etc., 3 ibid, 593; 13 Peters, 511; Martin v. Mott, 6 U. S. Cond. Rep., 
418. The acts to be done in this case were executive, and can not be 
restrained or directed by this court. The court could not enforce a decree in 
this case, should the same be rendered. Madison v. Marbury, 1 U. S. Cond. 
Rep., 278; 1 Arkansas, 1; Decatur v. James R. Paulding, 14 Peters, 497. When 
defect for want of parties is vital to the character of the bill, or fatal to 
the jurisdiction of the court, advantage thereof may be taken at any stage of 
the case. Story's Eq. Plead., 263.

There was never any contract, such as this court could enforce, entered into 
between the governor and complainants.

It is not deemed necessary to cite authorities to show that sales of this kind 
are within the statute of frauds. The statute authorizing the sale of the 
property points out the manner in which the contract is to be consummated, 
namely, by the declaration of the governor, and the certificate of purchase, 
which is to be concurrent with the payment of the first instalment. This 
declaration and certificate, or at least the declaration, is in the place of 
signing by the auctioneer, which is required in all cases of sales at auction.

A bill for specific performance will not lie against a person on a contract 
for the breach of which he is not personally liable in an action ex contractu. 
Hickman v. Grimes, 1 A. K. Marshall, 87; Smith v. Carney, 1 Litt., 295. And 
this is undoubtedly the law where the person contracting is acting for others. 
Story's Eq., vol. 2, p. 45, sec. 741; 3 Merrivale's Rep., 472. The governor, 
acting as the agent of the state, and contracting as such, could not be sued 
on this contract. 1 Term Rep., 172; ibid, 674; 1 Cranch, 347. The award of the 
executive was right, and the bid good and valid. 1 Sugden on Vendors, 17; 3 
Merrivale's Rep., 472, and following.

But lastly, this bill is defective, and should be dismissed, because it does 
not aver a sufficient tender and continued willingness and readiness to 
perform on the part of the complainants, by bringing the money and notes into 
court. DeWolf v. Long, 2 Gilman, 679; Doyle v. Teas, 4 Scammon, 202; Wright v. 
M'Neely, decided at this term of the court.

Browning & Bushnell, on same side, made the following points: The power was a 
judicial and discretionary one, and the decision of the governor was 
conclusive. Martin v. Mott, 6 Cond., 418, 419; Lane v. Dorman, 3 Scam., 241, 
242; United States v. Arredondo et al., 6 Pet., 729; Vanderheyden v. Young, 11 
Johns., 158; The People v. Collins, 19 Wend., 60, 64; Gaines v. Buford, 1 
Dana, 481, 484, 506; Merrill v. Sherburne et al, 1 N. H., 203, 205; Gordon v. 
Farrar, 2 Doug., 415; Fletcher v. Peck, 2 Cond., 319, 320; Roe v. Harris, 2 
Wash. Va. Rep., 126; Henderson v. Brown, 1 Caine's Rep., 101; Wilcox v. 
Jackson, 13 Pet., 511; M'Connell v. Wilcox, 1 Scam., 350, 351; Bennett v. 
Farrar, 2 Gil., 602; Brown v. Jackson, 5 Cond., 274; Walker v. Devereaux, 4 
Paige's Ch. Rep., 249, 250; Rex v. Mayor of London, 23 Eng. Com. Law Rep., 67, 
68; Stuyvesant v. Mayor, etc., of New York, 7 Cow., 606 to 608. The court will 
direct and control ministerial, but not judicial officers. It will set them in 
motion — require them to act, but not control their judgment. The governor was 
a judge, and if, after the bids were in, he had refused to examine and decide 
upon them, it may be that the court would have entertained a mandamus to 
compel him to decide, but it would not have directed what the decision should 
be. Judges of Oneida C. P. v. People, 18 Wend., 93; The People v. The Superior 
Court of N. Y., 5 Wend., 125; The People v. Judges Dutchess C. P., 20 Wend., 
659; Wilson v. Supervisors of Albany, 12 Johns., 415; Hull v. Supervisors of 
Oneida, 19 Johns., 260; Judges of Oneida C. P. v. The People, 18 Wend., 93; 
Hull v. Supervisors of Oneida, 19 Johns., 261. A bill for specific performance 
will not lie in this case, because it seeks to divest the state of title to 
land. The state can not be sued, and, of course, the court has no jurisdiction 
to decree against her. 1 Daniel's Ch. Pr., 175; Hovenden v. Ld. Annesly, 2 
Schoales & Lefroy, 617; Story's Eq. Pl., sec. 69; Osborne v. Bank U. S., 5 
Cond., 760, 761; Reeve v. Attorney General, 2 Atk. E., 223. A bill for 
specific performance will not lie against a person to enforce a contract on 
which he would not be personally responsible for damages, as when he is acting 
for others. Hickman v. Grimes, 1 A. K. Marsh., 87; Smith v. Carney, 1 Litt., 
297; 2 Story's Eq., 45, sec. 741. The governor was the agent of the state, the 
contract was the contract of the state, not his individual contract, and for 
any damages, the governor could not have been sued at law. Macbeth v. 
Haldimand, 1 T. R., 172, marg. synopsis; Unwin v. Wolseley, 1 T. R., 674, 
marg. synopsis; Williams v. Steward, 3 Merrivale, 506; Hodgson v. Dexter, 1 
Cond., 331, 332. This is a bill to compel a contract to be made. The bid does 
not make the contract, but the bid and its acceptance united. The 
complainants' bid never has been accepted. No contract, therefore, exists, 
and, of course there is no contract to be specifically enforced. Either party 
might have withdrawn the offer at any time before its acceptance. Payne v. 
Cave, 3 T. R., 149; Downing v. Brown, Hard., 181; 1 Sug. vend., 48, top 
paging; Chit, on Cont., 319; Babington on Auctions, 30, 31, 42, marg. Mutual 
consent is required before a contract is completed; until then the matter 
rests in negotiation. Mactier v. Frith, 6 Wend., 111; Eliason v. Henshaw, 4 
Cond., 433; Bruce v. Pearson, 3 Johns., 534; Tucker v. Woods, 12 Johns., 190.

The bid of Ash & Diller was the highest and best bid. The bid itself was a 
legal bid, and such as the governor was authorized and required by his duty to 
the state to accept. Bids of a similar character have frequently been made and 
sustained as valid. The act does not require a specific bid. 1 Sugden on 
Vend., 20, top paging; Babington on Auctions, 44, 45, marg.; Williams v. 
Stewart, 3 Merrivale, 471, 504. Even if the bid of Ash & Diller was irregular, 
it was still a bid, and being higher than the bid of Webster and Huntington, 
the latter would not have made the highest and best bid, and would not have 
become entitled to the property. The state may, of course, waive the 
irregularities of a bid, and give the property to the bid which is irregular. 
Williams v. Stewart, 3 Merrivale, 504, 506. Nor does the demurrer to the bill 
admit that Huntington and Webster were the highest responsible bidders. This 
might be the case, had the bill simply averred that fact; but the bill sets 
out all the facts from which that conclusion is sought to be drawn, and the 
demurrer only admits the facts, and devolves it upon the court to draw the 
legal conclusion from them. 3 Merrivale, 503.

The bill is founded on the idea that the bid of, and sale to, Ash & Diller was 
invalid. If they were not purchasers for themselves, the sale is void, and 
they can not be held as the trustees of a title for others, which is not in 
them. The positions are incompatible. 3 Merrivale, 506.

Caton, J. On the 12th of February, 1849, the general assembly passed a law 
authorizing the governor to sell the Quincy House, belonging to the state. The 
second section of that act required, the governor to advertise the property, 
stating the terms and conditions of the sale. The third section provided that 
the property should be sold for state indebtedness, one-third to be paid, 
down, and the balance in one and two years; and that, for the two last 
instalments, notes should be given, with sureties to be approved by the 
governor. The fourth section says: "The governor shall receive written sealed 
bids for said property, from all persons, until the first day of July, A. D. 
1849, at which time all the bids received, shall be opened and compared by the 
governor, in presence of the secretary of state and treasurer; who shall then 
declare the highest responsible bidder to be the purchaser of said property, 
who shall, upon the payment of the first instalment, receive a certificate of 
purchase, which shall entitle him or his assigns to a deed for said property 
upon the payment of the other two instalments." The fifth section authorizes 
the governor "in his official capacity," to convey by deed, etc.

In obedience to this act, the governor advertised the property for sale, and 
on the 30th of June, the complainants filed their sealed proposal, offering 
$21,100 for the property, which was the highest specific bid made, although 
several for less amounts were filed. On the same day the defendants, Ash & 
Diller, filed a sealed proposal to give for the property "the sum of six 
hundred and one dollars over and above the highest bid of the highest 
responsible bidder." Henry Root & Co., on the next day filed a similar 
proposal, offering "five hundred dollars more than any bid made." The first 
day of July being Sunday, the bids were not opened till the next day, when the 
complainants attended, and offered to pay the amount of the first instalment 
upon their bid, and to execute their note, with sureties to be approved by the 
governor, according to the terms of the act, but the governor informed them 
that he would not receive said payment and note, because he had determined to 
accept the proposal of Ash & Diller. On the next day the complainants made a 
formal tender of the first instalment and note, which was in like manner 
refused. The proposal of Ash & Diller, which was accepted by the governor, was 
computed at the sum of $22,201. The complainants in their bill set forth these 
facts, and also aver, that some days after, Ash & Diller tendered the said 
first instalment and note, with sufficient sureties, to the governor, who took 
charge of the same for safe keeping, but refused to give a final decision as 
to the legal effect of this tender. The bill also charged that the defendant, 
Johnson was in some way interested in the bid of Ash & Diller.

The bill further shows that it is, and for a long time has been an established 
custom of the post office department, and other departments of the United 
States government, and others, individuals and corporations, who habitually 
have made, and do make contracts upon written sealed bids, to reject such 
proposals as those of Ash & Diller, and of Root & Co., as not fair, bona fide 
and valid bids.

As to Root & Co., the bill was taken for confessed. The other defendants filed 
a demurrer, which was pro forma sustained, and the bill dismissed. Previous to 
the order sustaining the demurrer, there is in the record an agreement of the 
parties, showing that since the bill was filed, the governor has conveyed the 
premises to Ash & Diller, and that they have conveyed to Johnson. Although the 
agreement does not stipulate that these facts shall be considered as if 
presented by a supplemental bill, yet the case has been here argued by the 
counsel on both sides as if such were the state of the record, and so, for the 
purposes of the present decision has it been considered by this court.

From the barrenness of the books upon questions arising upon this sort of 
secret or sealed bidding, we may reasonably infer that till recently, at 
least, this has not been a very common mode of making sales or entering into 
contracts. At the present time, however, this mode of selling property is very 
common, and contracts for the construction of public works are almost 
universally made in this way, as well as a vast variety of other contracts, 
both by the general government and state authorities. The practical operation 
of this mode of doing business, has so recommended it to the favor of the 
public, that it has already become thoroughly incorporated into our business 
habits, and hence the question before us becomes one of peculiar importance.

Where sales are made upon secret bids, or sealed proposals, it is in fact but 
another mode of gelling by auction, and in this, as well as in sales by open 
bids, any thing which prevents fair competition, or tends to give one party an 
unfair advantage over another, must be discountenanced by the courts. The same 
rules of morality, fairness, and justice must govern in the one case as in the 
other. The only case referred to or found, which is supposed to have any 
similarity to this, is Williams v. Stewart, 3 Merrivale, 471; and what is said 
by lord Eldon there, on this question, it is admitted, is but dictum; for he 
professedly went out of his way to express an opinion on this point, while he 
decided that he had no jurisdiction of the case made. There, commissioners 
were authorized to sell certain land tax to the highest bidder, and they were 
required by an act of parliament to post a notice of the first bid received, 
for fourteen days on the church door, and in case no other offer was made in 
that time, exceeding the first offer by at least one per cent., they were 
authorized to close with the first offer. But in case an offer was made 
exceeding the first by at least one per cent., they were required to sell to 
the person offering the highest price. One of the commissioners made an offer 
which was posted on the church door. Then the complainant, Williams, offered 
sixty per cent, more than that offer, and Isted offered "one per cent, above 
the offer of any other person," and the lord chancellor expresses the opinion 
that this bid was binding on Isted. The act in that case did not say whether 
the bids should be secret or public, nor does the bill show but that all the 
bids were in fact public. This statement is sufficient to show that neither 
the law nor the bidding under it were like those in the case before us. Here 
the law expressly required all the bids to be under seal, which could not be 
opened till the bidding was closed. The bidding in this case, therefore, was 
in the strictest sense secret, and must be governed by rules reasonably 
adapted to such a proceeding.

In the case above referred to the chancellor says that sales where one bidder 
does not know what another has offered, are denominated candlestick biddings 
in the north of England, where it was never doubted that a bid of one per 
cent, more than any other offer, was binding on the bidder. If we are to 
understand from this that it was also binding on the seller, the most that can 
be said for it is, that in the north of England, custom had sanctioned this 
kind of offer. In this country, where this kind of secret bidding has become 
so common, we learn from this bill that custom has adopted a different rule, 
and all such bids are rejected as void.

There are a great variety of ways in which auction sales are conducted, where 
the bidding is public; yet all are governed by the same general principles. In 
case of sales where the bidders make written sealed proposals, within a given 
time, at the expiration of which, and not before, the bids are opened and the 
highest bidder is declared to be the purchaser, it is but another, although an 
entirely distinct kind of sale by auction. Each of these modes of auction 
sales possesses its advantages and disadvantages, both to the buyer and to the 
seller. In case of open public sales, the bidders have the advantage of each 
other's judgments, and can see at once how high it is necessary to bid in 
order to secure the property, while the seller has the advantage of open 
competition among the bidders. In such a sale each bidder has a right to know 
what bids are made by others, and to entertain a secret bid would be a fraud 
upon all the other bidders. Even open bids, apparently made in good faith, but 
which are not made with a design to purchase the property, but which are 
procured by the seller, in order to induce others to bid higher, are 
fraudulent, and for which the purchaser may refuse to complete the contract. 
Brixwell v. Christie, Cowper, 395. So also a secret combination among the 
bidders, for the purpose of preventing fair competition, is a fraud upon the 
seller, for which he may avoid the sale.

The peculiar advantages, to both seller and bidders, where the sale is by 
secret bids or sealed proposals, are also obvious, and any thing which 
deprives either party of these proper advantages, ought in like manner to be 
treated as fraudulent. In this kind of sale it is to the advantage of the 
seller, that the bidders should not know who they are bidding against, or 
against what bids they are contending, except as they may conjecture; and it 
is the manifest right of each bidder that others should be kept in ignorance 
of the amount of his bid. The object is to make each one bid upon his own 
judgment, and independent of other bids, and without regard to them, except as 
he may conjecture what they may be. Should the seller upon a sale like this, 
before the time for bidding had expired, open a bid and communicate it to 
another, who should thereupon make a higher offer, the sense of justice of 
every man would revolt at such a proceeding. In that case the bidders would 
not be upon equal terms; and were such a practice tolerated, all confidence in 
this kind of sales would be at an end.

It is said that the bid here received is within the terms of the law, and 
conformable to the terms of the sale, it being literally and in fact a higher 
bid than that of the complainants. This may be admitted without making the 
offer a legal bid. It is not enough at all times that a bid should be within 
the express terms of the sale. Neither party can shield himself behind a 
literal compliance with these terms, when he attempts to commit a fraud, or do 
any other act which is unfair or unjust towards other parties who are 
interested in the sale. When lord Mansfield first held, in the case of 
Brixwell v. Christie, that by bidding was a fraud upon real bidders, it was 
not denied that such a practice was no violation of the express terms of the 
sale, yet he did not hesitate to hold it to be a fraud, simply because it was 
unfair. He justly remarks, "the basis of all dealing ought to be good faith." 
There is never to be found in the terms of an auction sale, a clause 
prohibiting the bidders from combining together to prevent competition, still 
it is none the less unlawful for them to do so. The law implies every thing 
which good faith and fair dealing require, and none the less so in the case of 
sales by sealed proposals than by open bids. In both cases effects and 
consequences are to be considered, in determining what fair dealing and the 
true intent of the transaction require. This principle has long been applied 
to sales by open bids, and we can not doubt that it ought to be applied where 
the bids are by sealed proposals.

Suppose in the case of a sale by open bidding a written bid should be 
received, of which the other bidders were ignorant, it would hardly be denied 
that that would be a fraud upon the other bidders, and yet the case before us 
is in principle the counterpart of such a bid. In the former case, it is the 
right of each bidder to know what the others offer; in the latter it is the 
right of each to have his bid kept concealed. For the seller to admit the bid 
of Ash & Diller, has the same effect upon the bid of the complainants that it 
would have had for him to have allowed them to make a specific bid, after that 
of the complainants had been opened and made known. If this bidding is 
allowed, then one man, by offering a nominal sum over all others, may 
appropriate, to his own advantage, the judgments of others, who may have gone 
to great expense to form a correct opinion, when the very mode of selling was 
designed to give to each bidder the benefit of his own superior judgment.

To allow such a bid, is to render absolutely unavailing all specific bids, as 
well those made subsequently as those which were filed before. It precludes 
all possibility of a specific bidder getting the property, and all prudent and 
responsible men are driven from such sales, or else they must resort to some 
trick to avail themselves of such a practice. All fair competition is 
destroyed, for some such bid must always take the property. If these bids are 
tolerated, a responsible man will either not bid at all, or else he will get 
some irresponsible person to bid for him, behind whom he will stand till the 
result determines whether the bid is an advantageous one or not. If it is, he 
will then step forward with the funds to complete the purchase, but if it is 
not, he will remain in the dark, and allow the bid to be disregarded as 
irresponsible; where, as in this case, that right is reserved, or else will 
compel the seller to look to an irresponsible man for his remedy. This kind of 
bids will necessarily introduce and encourage this sort of tricks and 
practices, and real, bona fide bidders will not be found. Specific bids, with 
the expectation of getting the property, will cease to be made, and then for 
want of a basis upon which these fancy bids may rest, they must fall to the 
ground, and there will be an end of all this kind of sales.

But in this case there were two offers of the same character, and by what rule 
was the preference given to Ash & Diller? They offer $601 over the highest bid 
of a responsible bidder, and on the next day, Root & Co. offer $500 more than 
any bid made. Was Ash & Diller's a bid made? Then this last was $500 more. 
Now, the rule adopted was, to add to the highest specific offer, the bid of 
$500, which was last made, and to this sum was added the previous offer of Ash 
& Diller, making in all the sum of $22,201, which was decided to be the amount 
of Ash & Diller's bid, and for which they were declared to be the purchasers. 
If the principle was to be adopted of tacking to the highest specific bid the 
excess offered in one of the uncertain bids, and considering the latter a 
specific bid, to that amount, and then add to that the excess offered in the 
other uncertain bid, in order to determine its amount, we are unable to 
discover any satisfactory reason for giving the preference to Ash & Diller. 
Their bid was not only prior in date, and uncertain in amount, but it was also 
conditional, for it was so much above the highest bid of the highest 
responsible bidder, while the bid of Root & Co. was last in point of time, and 
unconditional, being so much more than any bid made. If Ash & Diller were now 
seeking to avoid their bid instead of insisting upon it, it would be hard to 
show that theirs was higher than that of Root & Co., for they being the next 
bidders after Webster and Huntington, might, with apparent propriety, insist 
upon having their bid first added to the highest specific offer, in order to 
determine its amount, rather than having a subsequent bid of the same 
character thrust in between them for the purpose of enhancing theirs. Had the 
order in which these offers were made been regarded, and that of Ash & Diller 
first added to that of the complainants, and to that sum had been added the 
last offer made by Root & Co., for the purpose of ascertaining its amount, 
they would have been declared bidders for the same sum for which the property 
was awarded to Ash & Diller. But it seems to us impossible to lay down any 
satisfactory rule to ascertain which of these uncertain offers should he first 
added to the specific bid, for the purpose of enhancing the other, and hence 
the impossibility of determining which of these was the highest. Each having 
an equal right to claim the benefit of the rule, each may with equal propriety 
insist that theirs is the highest, for it would be so when the rule is applied 
to it. By applying the rule to each alternately, they are made of equal 
amount. In such an event, it was substantially admitted in the case of 
Williams v. Stewart, by the counsel who supported the uncertain bid, that the 
two bids would destroy each other; for they say, "it may be objected if 
another person had made a similar offer, the two offers would have amounted to 
nothing, and the commissioners could have accepted of neither. But it is 
enough to say, that in the present instance no such case has arisen."

If this sort of bidding is sustained, it may prove no less detrimental to the 
seller than to the other bidders. The reason urged in support of Ash & 
Diller's bid is, that as the property was worth more to them than it could be 
to any one else, it was but right that they should be allowed to secure it by 
offering to pay so much more than any one else would. But this peculiar value 
of the property to them, is a circumstance of which the seller is entitled to 
the full benefit; and the very fact of their adopting this mode of bidding, 
shows that they supposed that they could obtain it cheaper in this way than 
they could by offering a specific sum; which they would be entirely certain 
would exceed any other offer. When men are so anxious to get property that 
they are willing to put in a desperate bid rather than run the risk of losing 
it — a bid which might prove absolutely ruinous, if strictly enforced, we may 
well suppose, if compelled to offer a specific sum, that they would bid at 
least up to the full value of the property to them.

Laying out of view the immoral tendency, so forcibly urged upon the argument, 
of this sort of reckless, desperate gambling bidding, would have upon the 
community, we have no hesitation in saying that it is unfair towards other 
parties, and that such offers ought to be treated as no bids at all.

It is true, that by accepting the bid of Ash & Diller, with the construction 
given it, something more than a thousand dollars would be obtained for the 
property over the bid of the complainants; but that sinks into insignificance 
when compared with a great principle, the determination of which must so 
essentially affect business transactions throughout the state. We are fully 
satisfied, that sales could not be safely made, or contracts entered into by 
sealed proposals, if bids like this were allowed. Each bid should be a 
complete and independent offer of itself, depending upon no other bid for its 
explanation or support, and which if there were no other bid, would effect a 
sale of the property.

Several other objections are taken to this bill, which will be now considered. 
It is said that the state is interested, and that it is a fatal objection that 
she is not a party. That the interest of the state may be incidentally, if not 
directly, affected by the decree in this state, is undoubtedly true. As a 
general rule all parties interested in the object of the suit must be made 
parties, before the court will proceed to its final determination. This rule, 
however, is not an arbitrary or inflexible one, but is adopted as a matter of 
convenience, and for the purpose of promoting the ends of justice, and 
whenever its application would defeat those ends, the rule must generally give 
way. 1 Story's Eq. Pl., sec. 77. Many instances are to be found where the rule 
has been dispensed with, on account of the great inconvenience and delay which 
it would occasion, although there was a possibility of its being complied 
with. How much more readily, then, should we admit an exception whore there is 
an absolute impossibility of its being complied with. Here the state can not 
be made a party. She shields herself behind her sovereignty, and refuse to 
allow herself to be brought into court. But what is the object of this suit? 
It is to determine which of these bidders shall have the property. In this, 
they are the parties directly interested. If the state were a party, she could 
not claim the right to hold it. She might have an incidental interest as to 
which shall succeed, as the amount which she may get may be thereby affected, 
and it may be that an individual occupying her position would be considered a 
necessary party. But here, as before remarked, it is impossible to make her a 
party, and surely that can not be allowed to defeat a just claim of right, 
which one citizen may have against another. But this is not a case of first 
impression. This identical question was settled by the supreme court of the 
United States, in the case of Osborne v. U. S. Bank, 9 Wheat. 738; 5 Con. R., 
740. There the state of Ohio had passed a law taxing the bank. The state 
auditor had collected the tax which had been paid over to the treasurer, who 
had, upon the books of his department, passed it to the credit of the state, 
although the fund was actually kept separate. A bill was filed by the bank 
against the auditor and treasurer, for a discovery and injunction, and to have 
the money refunded. The state law was declared to be unconstitutional, and a 
decree passed ordering the money to be refunded by the treasurer, without the 
state being a party, notwithstanding the direct and palpable interest which 
she had in the object of the suit. Could any doubt have existed, this case 
abundantly answers the objection, and, as we think upon correct principles.

But, it is said that the governor was vested with the sole authority to 
determine who is the highest responsible bidder, and that his decision, in the 
exercise of this discretionary power, is conclusive. At most, but a part of 
this proposition is true. Discretion is not the exercise of the will, but of 
the judgment, when applied to a question capable of being determined in 
different ways. Ordinarily, with the exercise of such a discretion, other 
tribunals will not interfere. But in no sense of the word can a man have a 
discretion to determine which of two given sums or numbers is the greater. 
That must be determined by comparison alone, and not by the judgment. The 
governor was not authorized to receive any but legal bids, and we have already 
seen that the proposition of Ash & Diller was not such a bid. In no event, 
then, could it be brought in competition with the bid of the complainants. It 
was impossible that the exercise of a discretion should be involved in 
determining which was the highest bid, and hence no such discretion could be 
conferred. It may be admitted that the governor was vested with a discretion 
to determine who were responsible bidders, but that question he determined in 
favor of the complainants, for he made their bid the first basis upon which to 
determine the amount of the offer of Ash & Diller, and by the very terms of 
their offer, only responsible bids could be used for such a purpose. In 
rejecting the complainants' bid, he did not pretend to place it upon the 
ground that they were irresponsible bidders, or that they had not in all 
respects complied with the terms of the sale, but he placed it solely upon the 
ground that theirs was not the highest bid. In this there was the exercise of 
no discretion involved.

Again, it is said that the duties imposed upon the governor by this act, were 
of an executive character, and not merely those of an agent, and that the 
courts will never interfere with a co-ordinate branch of the government, in 
the exercise of its legitimate functions. Without entering upon the discussion 
of the question of power or jurisdiction involved in this proposition, it is 
clear that all the duties imposed upon the governor by this act, except 
perhaps the mere act of making the conveyance, are merely those of an agent, 
which might as well have been conferred upon any other officer or individual. 
The fifth section of the act says: "the governor is hereby authorized, in his 
official capacity, to convey by deed," etc. Now the requiring him to do this 
one act in his official capacity, shows that the legislature did not suppose 
that in doing the other act required of him, he would act in his official 
capacity.

But because the executive may have to do an official act, in order to invest 
an individual with the technical legal evidence of a right, it would be a 
reproach to the institutions of a country, to say that the courts of justice 
would not determine between the conflicting claims of individuals to that 
right. We are not to be asked how we will enforce or protect that right, when 
the action of the executive is required to do an act by which alone the right 
can be completely secured, for it is not a supposable case that the executive 
will refuse to discharge a mere ministerial duty, when the rights of the 
parties are once legally ascertained. The same objection might be urged where 
the court is about to try a contested election, for the office, of justice of 
the peace or sheriff, because the governor alone can issue the commission. It 
can never be supposed that coercive measures will be required to induce the 
highest officer of the state to discharge a manifest ministerial duty, upon 
which the rights of individuals depend.

But in this case even the possibility of such a contingency does not exist. No 
further act of the executive is required to vest the legal title in the 
parties to whom in equity it may belong. The governor has already deeded the 
property to Ash & Diller, and they have conveyed it to Johnson, where the 
powers of a court of chancery are abundantly adequate to reach it. If one who 
holds a legal title in trust for, or who is equitably bound to convey to 
another, transfers the legal title, to a third person, who is aware of the 
equitable title, that third person becomes a trustee, and is as much bound to 
convey to the real owner, as if he had acquired the title with an express 
agreement to perform the trust. The present possession of the title, 
therefore, relieves the case from all embarrassment as to the means to be 
adopted to do complete equity, between the parties.

It was further objected that there is no contract with the complainants for 
the court to enforce. That, till the bid of the complainant is accepted by the 
governor, there is no contract, although theirs is the highest bid, and that 
such acceptance should be in writing, to take it out of the statute of frauds. 
As to the statute, that can not be objected on a demurrer. The other question, 
as to when the bargain is struck in sales of this sort, although an important 
one, we think it is free from difficulty. The question may be readily solved 
by the application of familiar principles. In this sort of sales, written or 
printed proposals are issued, offering to sell the property to the person who 
will, within a given time, agree in writing to give the most for it. The 
person, therefore, who brings himself within the terms of the sale, or, in 
other words, meets, in writing, the written proposition of the seller, thereby 
closes the contract of purchase. It is in principle precisely like the case 
where one addresses a letter to another, offering to sell property on 
specified terms. There, if the person addressed sends an answer in due time, 
acceding to the terms, the bargain is at once struck, and the correspondence 
constitutes the written evidence of it. This view of the subject seems to us 
conclusive of the question, without resorting to the fact, that in this case 
there is a special law, behind the public written offer of the governor, which 
of itself, confers the right to a conveyance of the property, upon the party 
who shall bring himself within its terms.

There is but one other question made in this case, which we think it necessary 
to examine. It is objected that the complainants have not actually brought 
their tender into court with their bill, and deposited it with the clerk. In 
this court, this is in fact a new question, as now presented, although in 
three different cases, in all of which the opinions were prepared by myself, 
it has been stated, that the tender should be kept good by bringing the money 
into court; yet in none of these was the question distinctly presented, or 
necessary to a decision, for in none of them had a sufficient tender ever been 
made, and, consequently, the question did not undergo that careful 
consideration which would have been given it, had the case turned upon that 
point. The cases referred to are, Doyle v. Teas, 4 Scam. 257; De Wolf v. Long, 
2 Gilman, 679, and Wright v. McNeely, ante, 241. We consider ourselves, 
therefore, at full liberty now to examine the question, at least, without 
being concluded by what has formerly been said on this subject.

The question, whether a party who files a bill for a specific performance of a 
contract for the purchase of land, shall bring the unpaid purchase money into 
court, does not seem to have attracted much attention, for in no case do I 
find it carefully examined upon principle. The tenor of the decisions, 
however, upon bills of this character, shows that there is no uniform or 
inflexible rule, making such a deposit indispensable in the first instance. It 
is true that expressions are to be met with in the opinions of other courts, 
as strong perhaps as those used in the cases above referred to, but it will be 
seen that they are not to be understood as asserting an indispensable 
prerequisite. Thus, in the case of Jarbol v. M'Alies' Heirs, 7 B. Monroe, 279, 
the court said : "but, were the evidence on this point sufficient, in order to 
make a tender available in a case of this kind, it is incumbent on the 
complainant to pay the money in to court, so that during the long progress of 
a chancery suit, it may, under the control and direction of the chancellor, be 
rendered productive. In a plea of tender at law, the party, to get the benefit 
of his plea, has to bring the money into court. Much stronger reasons exist 
for requiring this to be done in a case to be settled by the chancellor;" and 
yet in that very case a specific performance was decreed, although the money 
had not been brought in to court, nor was even a tender strictly proved; and 
the only penalty imposed upon the complainant, for this omission, was, that he 
had to pay interest on the amount during the pendency of the litigation, he 
having had possession of the premises in the mean time. But cases of even 
greater indulgence to the complainant are to be met with. In Burke v. Boquet, 
1 Dessaus., 142, which was a bill for a specific performance, it does not 
appear that either a tender or a deposit in court of the purchase money was 
made, and yet it was decreed, "that it be referred to the master, to state and 
report what is the balance due on the contract in the bill mentioned, and that 
on the payment thereof, with interest, and of the costs of suit, within one 
month from this day, the defendant execute title to the complainant in the 
bill mentioned." From the brevity with which this case is reported, we cannot 
learn its particular circumstances, but the decision itself shows that the 
suit might be maintained without a deposit of the purchase money. The suit of 
Louthler v. Anderson, 1 Bro. Ch. R., 347, was of the same character, and upon 
a rehearing before the chancellor, "his lordship varied the decree in the 
manner prayed, by ordering it to be referred to the master to appoint a short 
day for the payment of the money, and to compute subsequent interest till that 
time, and if, upon a tender of a sufficient conveyance, the principal money 
and interest should not then be paid, the plaintiffs bill to be dismissed (as 
against defendants) with costs." Here is the same case, of time given to the 
complainant, even beyond the hearing, for the payment of the purchase money.

In Hunter v. Daniel, 4 Hare, 3 Eng. ch. R., 420, which was also for a specific 
performance, it was objected on demurrer, that the complainant had not 
complied with his part of the agreement, by paying or tendering the whole of 
the purchase money, and to this the court said, "the only remaining point 
insisted upon was, that the making of every payment was a condition precedent 
to the right of the plaintiff to call for the execution of the agreement or, 
in fact, to call for the benefit of it; and it was argued that the bill could 
not properly be filed before the plaintiff had, out of court, fully performed 
his agreement. The general rule in equity certainly is not of that strict 
character. A party filing a bill submits to everything that is required of 
him, and the practice of the court is not to require the party to make a 
formal tender; whereas, in this case, from the facts stated in the bill, or 
from the evidence, it appears the tender would have been a mere form, and that 
the party to whom it was made would have refused to accept the money. The 
defendants, according to the allegations of the bill, insist that the 
agreement is altogether void, and the plaintiff therefore is at liberty to 
contend that the tender would have been useless." The reason for a different 
rule at law is stated in that case.

In New Hampshire, where by express statute a redeeming mortgagor was required 
to make a tender and bring the money in to court, in the case of Bailey v. 
Metcalf, 6 N. H. R., 158, the court said; "in this case the money tendered has 
not been brought into court. But if it were the only difficulty in the case of 
the demandants, it might perhaps be now removed, by lodging the money with the 
clerk."

The only case which I have found, where this precise question has been 
presented by the record and directly decided by the court, is that of Washburn 
v. Dewey, 17 Vermont, 92. There, the defendant objected, that "though the 
oratrix tendered the money properly before the time specified, yet the tender 
was not kept and brought in to court when this bill was entered." The court 
said: "the excuses for not performing this contract are, if not frivolous, at 
least very unsatisfactory. The oratrix having tendered to the defendant the 
money for the payment of the note, had nothing further to do until the 
defendant manifested his willingness to comply with his obligation, and 
demanded the money. There is no pretence therefore for saying the tender was 
not kept good."

The result of my examination of this subject clearly shows that the court of 
chancery is not bound down by any fixed rule on this subject, by which it will 
allow the substantial ends of justice to be perverted or defeated by the 
omission of an unimportant or useless act, which nothing but the merest 
technicality could require. The money may, at any time, be ordered to be 
brought in to court, whenever the rights of the opposite party may require it; 
but while he is insisting that the money is not his, and that he is not bound 
to accept it, it would seem to be a matter of no great consequence to him 
whether it is in the custody of the court or not. The court possess a liberal 
and enlarged discretion on this subject, by the proper exercise of which the 
rights of all parties may be protected. In all the precedents which I have 
examined in cases like this, I do not find a single instance in which the 
complainant, by his bill, professes to bring the consideration money in to 
court, although a tender is most generally averred. Even where a bill is filed 
by a mortgagor to redeem, he does not profess in his bill to bring the money 
in to court, nor is it usual for him to do so, but he only makes a present 
offer to pay the money. He might, probably, by tendering the amount due, and 
by bringing it in to court, stop the interest, but if he does not choose to do 
this, I do not think a precedent can be found for dismissing a bill for that 
reason. I can perceive no stronger reason for requiring the money to be 
brought into court, in the first instance in this case, than in the case of a 
mortgage. In the case of a bill of interpleader, where the practice on this 
subject is much more strict than in any other case in chancery, the rule is 
not inflexible that the fund shall be deposited in court, and I have been 
unable to find a single instance, where even such a bill has been dismissed 
for the sole reason that the fund was not deposited at the time the bill was 
filed. Indeed, it has been expressly decided that such a bill is not 
demurrable, because the plaintiff does not offer to bring the money into 
court. Menx v. Bell, 6 Sim., 175; 1 Smith's Ch. Pr., 2 Am. Ed., 476; 3 
Daniel's Ch. Pr., 1 Am. Ed., 1760.

Without pursuing this subject further, I am satisfied that the expressions 
used by me in the cases referred to, were not warranted by the law, or at 
least that they should not be understood as laying down an inflexible rule, 
prescribing an indispensable condition, which must be complied with before the 
complainant is properly in court, or even before the court will proceed to 
determine the rights of the parties. It is time enough for the party to bring 
the purchase money into court, when he is called upon to do so. The decree of 
the circuit court is reversed, with costs, and the suit remanded, with leave 
to the complainants to amend their bill and to file a supplemental bill, as 
they shall be advised, and with leave to the defendants to answer. 

Decree reversed.

---------------
Cited — Richardson v. Ford, 14 Ill., 332; Explained — Clark v. Ewing, 87 Ill., 
344.

(1) See Gilham v. Cairns, Breese (ed., 1885), p. 124, note 1.

(2) See Wright v. M'Neeley, ante, p. 241 and note 2; also, Knox v. Light, 12 
Ill., 86 and note 1.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

File at: http://files.usgwarchives.net/il/sangamon/court/webster89gwl.txt

This file has been created by a form at http://www.genrecords.org/ilfiles/

File size: 62.7 Kb