#### J. C. Blum vs. A. Della Torre.

Tried before his Honor Judge Bat, Charleston, October Ternf, 1835.

This was an action by summary process, on an open account for $81 32, for goods sold and delivered. It was proved, on the part of the pliintiff, that the defendant bought the goods mentioned in the account, at the prices stated, at an auction sale made by the plaintiff, who is an auctioneer, and that, the goods were delivered; On the cross; examination, it appeared that the sale took place at a store, No. 67 Market-street, which was known as the store of J. C. Karclt, who was present at the sale.

The defence stated, and of which the plaintiff had notice in writing, that the goods purchased by the defendant, were the goods of Karclt, and were advertised and sold as such, and that Karclt was indebted to the defendant at the time, $84 26, and that the defendant bought at the sale, for the purpose of satisfying this demand. The advertisement, under which the sale was made, was produced in evidence, and is as follows:

“ Groceries, &c. — Positive sale by J. Chas. Blum. This day, the 14th inst. commencing at 10 o’clock, will be sold at the store, No. 67 Market-street, south side — the remaining stock of said store, comprising a well selected slock of groceries, wines, and liquors; conditions cash, before delivery. The sale will be positive, the proprietor being about to engage in another line of business.”

It was also proved, on the part of the defendant, that the store, No. 67 Market-street, was Karck’s, and was generally known as such. The defendant offered evidence to prove the debt due by Karck to him, which was rejected. The plaintiff’s counsel objected to all evidence, going to show that the goods were Karck’s ; but this objection, was overruled, The case was tried by a jury, who found a verdict for the plaintiff, for the amount of his account under the charge of the court that he was entitled to recover.

*154The defendant’s counsel have served me with notice of a motion for a new -trial on the. grounds :

I.. That the court erred in rejecting the evidence offered "by the defendant, that Karck was indebted to him at the time of the sale.

2. That the court erred in charging the jury, that the plajDtiff was entitled to recover*

So That the verdict was contrary to law and evidence.

The above appears to be substantially a correct state of the case, and 1 was of opinion on the trial of the issue, that the defendant was liable upon his contract, at public auction, and had no right or autlio. rity go and purchase of a third person, a debt or demand, in order to set off" against a public auctioneer,

J3. H. BAY,

Chancellor Hauves.

delivered the opinion of the court.

The case of Coppin vs. Craig, 7 Taunt. 243, relied on by the ap= p?»üat..t’s counsel, is certainly in point, to shew, that a purchaser at an auctioneer’s sale, may set off against the auctioneer, a debt due him by the owner of the goods; or by the person who was held out as owner, by the auctioneer, though he was not, in fact, owner. Tins is supported by Coppin vs. Walker, id. 237, that the purchaser may make payment to the owner, and this will be a defence to the action of the auctioneer ; and further, that payment to the person, who *vras*held out as owner, by the auctioneer, will be good, though ho wsfl not, ia fact, owner.

This is not at all inconsistent with the case of Williams vs. Millington, 1 Hy. Bl. 81. That case, as observed by Park, J. in Coppin vs. Walker, only decides, that the auctioneer may maintain aw action for goods sold by hint. He has a qualified property in the goods, in consequence of his lien for expenses, commissions, and auction duty. He might, therefore, have refused- to deliver the goods, until the price was paid; bdt having delivered them, he has parted with his lien. In Williams vs. Millington, possession of the goods was obtained by fraud, and it appeared that the auctioneer had actually paid over the price to the owner. It is like the case of a factor, who may maintain an action in his own name for goods sold by him, but there is no doubt but that the purchaser may set off a debí, due him by the principal ; or even in an action by the principal, may set off a debt due him by the factor, if he treated with the factor asr principal, and did not know the owner of the goods, George vs. Claggett, 7 T. R. 355, and Rabone vs. Williams, ib. n. The presiding judge states, that he thought the defendant had go right to pur-*155olíase a debt or demand, of a third person, to set off against a poM lie auctioneer. Bui. from the previous statement, it does not appear, that the set off offered, hart been so purchased ; indeed, the contrary might be inferred. That can only be known, when the ©vadeaos* which was rejected, shall be received.

Pebonseatj-, Maztck, & Fotmt, for motion.

SoHH£®Ej£.a, contra.

Filed 3d May, 1836.

Motion gianted.

WM. HARPER.

We concur,

EEN&Y W. DESAUSSlillE,

JNO. B. O’NEALL,

J. JOHNSTON,

A. P, BUTLE8.

Eablh, J. absent.