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Scottish Court of Session Decisions >>
Andrew Grey v Charles Stewart, James Grey, and James Miller. [1753] Mor 9560 (7 July 1753)
URL: http://www.bailii.org/scot/cases/ScotCS/1753/Mor2309560-093.html Cite as:
[1753] Mor 9560
Turpis causa. - Sale to a White Bonnet at a Roup. - Obligation not to oppose reduction of a Verdict of Fatuity. - Transacting a Crime. - Transacting Church Penance. - British Subject purchasing a Captured British Ship. - Combination of Offerers at a Sale. - Combination to raise the rate of Wages. - Combination against receiving Money of a particular Coinage. - Pactum contra utilitatem.
Andrew Grey v. Charles Stewart, James Grey, and James Miller
Date: 7 July 1753 Case No. No 93.
A sale made at a roup to a white bonnet is void, and the next highest offerer will be preferred.
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James Grey exposed his lands to be sold by public roup to the highest offerer. At the roup, James Millar was seemingly the highest offerer, and Andrew Grey was the second. Soon after the roup, James Grey, the seller of the lands disponed them to Charles Stewart, for whom it was pretended that Millar had offered by commission. Andrew Grey, the second offerer, insisted in a reduction of the sale made at the roup to Millar, and of the disposition made in consequence of that sale by James Grey to Charles Stewart; and he contended that Millar was only what is called a white bonnet, viz. a person employed by the seller to raise the price without any intention of buying for himself, and secured that he should not be bound by his offer. The pursuer further alleged, that Charles Stewart was partaker of the fraud, in so far as he knew, that Millar was employed by the seller as a white bonnet.
At advising a proof in this case, it was mentioned from the Bench, that this too common practice of employing white bonnets at roups, was a manifest cheat. 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. That in the case of the sale of Keith, Watson against Maule, No. 22. p. 4892. voce Fraud; the Court was clearly of this opinion upon the general point, though the decision went upon the particular circumstances of the case.
“The Lords found, that the offer made at the roup by James Millar, was made by him by commission from, and for the behoof of, James Grey the seller, and was illegal and fraudulent; and that therefore, Andrew Grey, the immediate preceding offerer, ought to be preferred as the highest offerer at the said roup; and found sufficient evidence, that Charles Stewart, who was present at the said roup, was partaker with James Grey of the said fraud; and therefore sustained the reason of reduction of the disposition by James Grey to the said Charles Stewart, and seisin following thereon, and reduced the same; and found the said James Grey obliged, on the pursuer's making payment to him of the price offered by him at the said roup, to dispone the lands to the pursuer in terms of the articles and conditions of roup, and found the defenders liable to the pursuer in the expenses of this process.”
Act. Boswell.Alt. Hay.Clerk, Justice.
Fol. Dic. v. 4. p. 35. Fac. Col. No 87. p. 132.
