#### Samuel Bennet *ads.*William Carter.

Tried before his Honor Judge Gantt, Charleston, May Term, 1886.

*"Report of the Presiding Judge.*— The defendant purchased certain negros at vendue, and the terms of sale were not complied with ; the negroes were, therefore, resold, and the price, at which they were bid off, fell short of the former sale by $100. And this action was brought to recover the difference between the first and last sale. See 2d vol. of Brevard, p. 325, 7th and 8th sections.

*Testimony.*— Mr. Moses deposed, that the four negroes were put up on the auction table ; and he was employed by Carter as his salesman. Both Carter and himself got on the table. Carter de. slared that the negroes were sold as they were. That there was *288no guaranty but that of title. That some person present asked, what is the matter with the negroes ? That Carter replied he did not know ; there they were, ask them any questions they thought proper. The witness asked the girl what was the matter with her. She said she could not retain her water. The witness, on looking round, found the fact was as stated. The witness said he had every reason to believe that Bennett was present, and heard it. The ne* groas, witness said, were put up at $550, or $555. That Bennett walked round and spoke to the woman, or her mother, and then bid ton dollars more, and they were knocked off to him. That Bennett asked the witness where he could get the negroes, aud he was told at Carter’s office, in the course of tiie afternoon, or next morning. That next evening Carter requested the witness to tell Ben. nett to call for the negroes, and he did so. Witness would suppose the children were four or five years old ; that the mother was a good looking woman, the other woman old. Witness deposed that he was at the re-cale. They were advertised as sold at the risk of the former purchaser. That they were sold for $460. That he saw the mm, that bought the negroes, in company with Bennett, who called the ¡Kile negroes to him alter the re-sale, and' seemed to have che control of them.

On his eroi«»exarainaiion, the witness stated that he does *not*know the names of the negroes. That the mother of the children was 30 or 35 years old. The witness could not say what were' the terms of sale, but would sooner say cash than otherwise. He stated tiiat the negroes after the first sale went to Carter’s aud *from*thenco, he thinks, to the work house. He understood so from Mr. Bennett. He stated that *Bennett*stood near at the first sale ; that there was not much of a *crowd.*Witness said if the negroes had been perfectly sound, they would have been worth more money; that the woman, if sound, would have then been worth $450. Witness deposed, *that*the charge *for*keeping a *negro at the*workhouse is eighteen cents per day, and if fed with meat, more.

William Carter, *the vendue master, was*called *as a witness, and*was objected to by Mr. Fiost, on the ground, that he was plaintiff in the action. The objection was overruled ; and the witness being sworn, deposed, that he made the entry of the sale ; that the four negroes sold for five hundred and sixty dollars ; and at the re-sale for four hundred and sixty. Witness stated, that S. Bennett purchased at the first sale.

On the cross-examination, witness deposed, that the first sale was on the 14th of April, 1834, and that the second sale was on the 2d May, 1834, on account, and at the risk, of the former purchaser. Here an agreement between Bennett and Carter, as to the re-sale of the negroes was read ; and the plaintiff closed his evidence.

For the defence, Francis Lance was sworn, who deposed, that he is an auctioneer ; that in 1834, negroes wore not as valuable as now ; that it was a fair price for four negroes such as described ; that the two boys would have brought $600 ; but that selling the© ■with the woman would decrease their value $300.

*289Á certificate of Dr. North was offered as to the woman Maria ; by which it appeared that the woman was valueless and offensive;

Upon the loregoing evidence, the jury, under the charge of the court, found for the plaintiff, the difference between the first and second sale, with interest. I was served with the annexed notice, and no further comment is necessary.

RICHARD GAÑTT.

*Grounds of Appeal.*

1. That his honor erred in admitting the testimony of the plaintiff to prove the case.

2. That the verdict is erroneous in finding interest; and is, in other respects, contrary to law and evidence.

BAILEY «& DAWSON, *Defendant's*Attorneyss

Baxley & Dawson, for motion-.

Dunkin & Brewster, contra.

Filed 14th Feb. 1837.

Mr. Justice Butler

delivered the opinion of the court.

The motion tor a new trial must be granted. The plaintiff; *A*vendue roaster, had the right under the vendue act, to bring this action ; but he occupies the position of every other plaintiff on record,- and cannot be a witness in his own cause, unless he comes within the provisions of a special act of the legislature giving him such fight. He has shewn no such law. He has an interest in the result of this case, which every party has, who is liable for costs. He is not a nominal, but a real party interested, and not like an Ordinary or other public officer, whose name is used to bring an action on an official bond, but who are not liable for costs. Every vendue master is required to keep a book, and the vendue master would be a competent witness, perhaps, to prove the entries in his book, like any other agent, in an action by the original owner. But when he brings the action himself, he must support it like any other plaintiff, by competent and the highest evidence which the case admits of. I shall not undertake to indicate the evidence which may, or may not be sufficient and competent. The motion for a new trial is granted.

A. P. BUTLER.

We concur,

J. S, RICHARDSON,

JO SI All J. EVANS.

JOHN B O’NEALL,