
    Campbell & Milliken against Nathaniel Ingraham.
    Charleston,
    May, 1817.
    recovered. Where by accidoes not call and examine a witness who was present íd Court, and a nonsuit is moved after he lias rested his case, the Court •will still permit the witness to be ^oeerance of ^
    the first are not complied with. This was a case under the vendue act, tried before Mr. Justice Bay, at Charleston, May Term, 1812. The act enjoins on the court to afford the parties the most speedy and eftectuai rebel L x for the recovery of the difference between first i t i , ,. •» ,¶ . and. second sales at auction, where the terms oí '
   Bay, J.

delivered the opinion of the Court.

I permitted the plaintiff to file his declaration, and to take out a ten-day rule, to plead, after which the cause came on in the course of the term. Before the Jury two witnesses proved that twelve pipes of Madeira were put in a row, and that the conditions of sale were, that the purchaser should have the liberty of taking one, two, or more pipes, as they lay arranged in the store; and that the defendant became the purchaser of two pipes to the left of the row; or, in other words, two pipes beginning at the left end of the row, at the price set down in plaintiffs books; that he was after the sale tendered with an account, and payment demanded, hut refused it unless he had his choice of the pipes, which Was refused. That these two pipes were after-wards advertised and sold again, at the risk of defendant, at a loss, and the present suit was brought for the loss.

The defendant alleged in his defence, that he was to have had the choice of his pipes, but he had no witnesses to prove it. The Jury gave a verdict for the plaintiff, to the amount of the difference between the first and second sale.

It is true, after the plaintiff said he would rest his case with the Jury, Mr. Cross, defendant’s attorney, called for a nonsuit, because plaintiff had not proved that he had given seven days notice before the second sale; but as this was a mere omission or oversight in the plaintiff’s attorney, I did, in furtherance of justice, (as is often done,) give leave to examine a witness who was in court as to that point, and he did prove that the Seven days notice was given agreeably to the vendue act. And I should have thought myself guilty of an act of injustice to the plaintiff, if I had refused that privilege which is every day’s practice to allow; when any material point has been omitted in the course of the testimony, especially where the witness was present in court ready to answer the question, and prove the notice.

This is a case which turned altogether upon facts, and on the evidence offered in support of them; and the Jury found a verdict conformably to the testimony given.

After hearing the counsel in support of the motion for a new trial, the court did not think it necessary to hear counsel against the motion;— being unanimously of opinion there was not even a shadow of a ground for a new trial.

Cross, for the motion.

King, contra.

They were therefore of opinion that the rule should be dismissed.  