The opinion of the court was delivered, by

— The testimony that was given on the part of the defendants below, particularly that of Peter Hewitt, was sufficient to distinguish this case from that between the same parties reported in 5 Wright 135. In the former case, no evidence of a fraudulent sale was submitted, except that Brother-line, who acted as crier for Clark, the deputy marshal, became himself the purchaser at a price greatly below the value of the property. These' circumstances were held insufficient to avoid the sale. But on the last occasion it was in proof, in addition to these circumstances, that Brotherline denied his authority, to sell, and said to Hewitt, who went there to bid, “ I do not want you here at all to-day.” Taking all of Hewitt’s testimony into view, the conduct of Brother line looks, indeed, somewhat suspicious, and yet it is not quite clear that Hewitt was restrained from bidding by Brotherline’s repulsive remarks, so much as by his own doubts as to the ownership of the property. It was no part of Brotherline’s duty to insure the title, or resolve the doubts of bidders on that head, and if what he said about his defect of authority, had reference to the ownership of the defendants in the execution, it was nothing more than a refusal to resolve the doubts which Hewitt and perhaps other persons felt about the title of the defendants in the writs. And along with his repelling observations there were, according to Hewitt himself, direct invitations to bid- given by Brotherline.

In such a state of circumstances the fraudulent intent of Brotherline was a question for the jury, and it has always been so treated in similar cases: Walter v. Germant, 1 Harris 516; Crook v. Williams, 8 Id. 345; Abbey v. Dewey, 1 Casey 413; Hogg v. Wilkins, 1 Grant 67. But the court being of opinion *70that the sale was fraudulent, directed the jury to find for the defendants. This may have heen a very sound conclusion, but it was too summarily reached. Besides Hewitt’s testimony, there 'was that of several other witnesses, and there was the presence of Clark, the responsible officer, who was charged with the conduct of the sale, to which due attention should have been given, and from the whole the fraud, if any, should have been deduced as a conclusion of fact by the jury, and not as a conclusion of law by the court.

Undoubtedly if Brotherline discouraged and repelled bidders, whereby he was enabled to strike off to himself $1800 worth of property for $20, it was a gross fraud which would avoid the sale. On the other hand, if he fairly gave all bidders a chance to buy, and only refused to assure them of the title they would obtain, the purchase by himself, even at so low a figure, was not fraudulent, seeing that he vas the mere mouth-piece of Clark, for whom and by whom, in point of law, the sale was made. The jury should have been permitted to decide which it was.

The judgment is reversed, and a venire facias de novo is awarded.