
    
      A. W. Yongue v. David Aiken.
    
    The defendant in execution is a competent witness for the sheriff, in an action to recover from a purchaser the amount of his bid, at a sale of the defendant’s property.
    ■ Before Frost, J. at Fairfield, Spring Term, 1849.
    This was an action of assumpsit to recover $1,975, the price of Rynah and her three children, purchased by defendant, September 2, 1844, at a sale of John Ford’s negroes, under execution.
    The plaintiff proved the sale by the entry in the sheriff’s sale book. The plaintiff also proved by Leggo, Rosboro, and John Ford, jr., that the defendant had bid off the negroes for the sum mentioned in the note. John Ford, the defendant in the execution, at this stage of the case was offered as a witness, and rejected because he was interested, by the recovery against Aiken, who had bid an extravagant price, to increase the amount of his assets. The plaintiff closed; and a motion was made for a non-suit, because there was no evidence of a delivery or tender of the negroes to the defendant. A tender of the negroes in January, or February, succeeding the sale, was proved, and that the negroes were re-sold by Cockerell, the successor in office of the plaintiff, under executions against Ford, on the third of February.
    The defence was, that, by an agreement between the plaintiff and Aiken and N. A. Peay, Aiken’s bid was transferred to Peay.
    It appeared thatN. A. Peay had entered judgment by confession against John Ford, for $60,000, the 15th April, 1843’ and, on the same day, C. D. Ford had entered upa similar judgment for $30,000. Executions on these judgments were lodged the same day, and they were the oldest. Under those and other executions, the plantation of the defendant and 86 ne-groes, and all his other effects, were sold on the second and third days of September, 1844. The plantation was bid off by McGee, who transferred his bid to N. A. Peay. Peay purchased about fifty of the negroes, and the defendant thirty. After the sale, all the negroes returned to the plantation, from the court house. Wednesday following, twenty-six of those bid off by the defendant came back from the plantation and went into his possession. Rynah and her three children remained on the plantation until they were re-sold in February, 1845, and from that time to the time of the trial. A sale bill of the plaintiff to the defendant was produced, dated 26th September,' 1844; it was to this effect: “Mr. David Aiken bought at sheriff’s sale, property of J. Ford, 26 negroes, to wit,” (naming them,) and acknowledged the receipt of $7,066, “ in , full of purchase money and interest of the above 26 negroes, sold as the property of John Ford, the second September, 1844, on executions of Harrison, and others.”
    
      Thompson. — Testified that he had heard the plaintiff say more than once, that his understanding was, that the negroes bid off by the defendant were, by an agreement between Aiken and Peay, transferred to Peay; the plaintiff was well pleased with the transfer of the bid, and that thereby the parties Were restored to friendly terms ; he heard no complaint, until after he wént out of office ; he said the agreement was made Tuesday, at the plantation, when the sale of the effects there was made.
    
      Harrison Jones. — Testified that in September, 1844, at muster, he talked with Peay about John Ford’s negroes, and the high price P. had paid lor a woman Sarah; and P. said he Would have bid $200 more if Aiken had bid on; the witness said, you and Aiken have the yellow negroes pretty equally divided; P. said no, he had agreed to take Rynah from Aiken. These declarations of Peay were objected to, but admitted. Peay’s negroes, with Rynah and her three children, remained on the plantation after their return from the sale, and have continued to work there ; John Ford is a relative of N. A. Peay; he has lived on the plantation since the sale; C. D. Ford for two years resided in Richland, occasionally visiting the plantation ; after he sold his Richland property he moved to the plantation ; his father and himself have continued to live there; C. D. Ford manages the property ; the amount of the sales of the property was about $>43,000, and was not credited by the sheriff on either of the executions of Peay and C. D. Ford; the parties were permitted by the sheriff to arrange the payment among themselves; they, which the defendant, have resorted to the Court of Equity for an adjustment of their conflicting claims.
    The jury were instructed that, with the consent of the three parties, it might have been arranged that Aiken should transfer his bid to Peay, and if it had been agreed between Peay and Aiken, with the consent of the plaintiff, that Aiken should transfer to Peay, Rynah and her children, at the price they were bid off by Aiken, in part payment of Peay’s execution, and that agreement was executed by ah actual delivery of the negroes to Peay, before the re-sale in February, that the verdict should be for the defendant.
    After the jury had retired, the foreman came into Court and inquired if they found a verdict for the defendant, whether Yongue would be saved harmless, and his Honor replied in the affirmative.
    The jury found for the defendant, and the plaintiff appealed, on the grounds:
    
      1. Because the presiding Judge charged the jury, that if by an arrangement between Peay and Aiken, with the consent of the plaintiff, the negroes were transferred by Aiken to Peay, at the price Aiken had bid them off, in part payment of Peay’s execution, and this arrangement was executed by the delivery of the negroes to Peay before the second sale, then the jury should find for the defendant.
    2. Because his Honor, in answer to a question asked him by the foreman of the jury, “ whether if the verdict was in favor of the defendant, the plaintiff would be absolved from liability?” replied, “certainly.”
    3. Because the Court permitted the declarations of Col. Peay to be received in evidence.
    4. Because the Court held John Ford to be an incompetent witness to prove the terms upon which David Aiken had left the negroes in his possession.
    5. Because there was no evidence that the bid had been transferred to Col. Peay, or'any act upon the part of Col. Peay to bind him to accept the negroes, or pay the bid.
    6. Because the verdict was against law and evidence.
    Boyce, for the motion.
    McDowell, contra.
   O’Neall, J.

delivered the opinion of the Court.

In this case, the question, whether John Ford is a competent witness for the plaintiff, is the only one which will be considered. After the defence of the defendant came out, and it was thus seen that the true controversy was, whether Aiken was discharged from his bid, by Nicholas Peay, (who may be regarded as the only judgment creditor entitled to the proceeds of the sale) becoming in his stead the purchaser, there could be no doubt that on that issue John Ford was a competent witness. Indeed from the statement made by the defendant’s attorney, that this defence was spread on the record by a special plea, it might be that he would be competent to the plaintiff, in the first instance, to disprove it, though certainly it would have been more regular to have produced the testimony in reply to such as the defendant adduced.

The question, however, will be considered, supposing John Ford to have been offered by the plaintiff, generally, without any reference to the defence, or the particular testimony which he was to give. In a law Court, this is perhaps invariably the proper mode of judging of the competency of a witness. For in general we are not, like the Court of Equity, privileged to examine witnesses on particular questions, when incompetent in the case itself.

To disqualify a witness, he must have a certain and immediate interest in the event of the suit, or in the record, as evidence for him. In this case, the record would never be evidence for John Ford, in any other case. This proposition requires neither argument nor illustration. So, too, in reference to the question of interest, it seems to me self-evident, ' that Ford cannot be either gamer or loser by the event of tpjs causi3t N0t to say any thing of his great insolvency, and therefore that he could have no money interest in the result, it may be confidently asserted that he has no prospect of gain or loss, let this case be decided as it may. So far as he is concerned, the plaintiff Yongue is liable for the price at which Aiken bought. For the very facts which will charge Aiken, will at the same time charge Yongue. It is the business of the sheriff to sell for cash, and if the purchaser fails to pay, he must re-sell, on the same or the next sale day, unless the plaintiff in execution directs him not to re-sell at such time.

Gibb. Ev. 107. l Phiil. Et. 55."

In this case Yongue sold, and as I understand the proof, suffered the negroes to go back to Ford’s, whence defendant received all, except this woman and her children, and he would also have received them, had he not supposed Peay was to take them, at his bid. From this, I conclude, they were considered as delivered, when struck off, at the auction, in front of the court house. Under such circumstances, the plaintiff was liable to Ford, and it was perfectly immaterial to him whether Aiken was or not. Suppose Ford was called to prove the delivery — for that was all which he could prove about the sale, which is required to appear in writing, and that had been proved by the proper entries, in the proper books. In such a case, there is no doubt Ford would be competent. His proof would charge the plaintiff, as well as the defendant. Between them he would be indifferent.

The motion is granted.

Richardson, J. — EvaNS, J. — and Wardlaw, J. — concurred.

Fr,ost, J.

dissenting. — A new trial is ordered in this case, because John Ford was not admitted as a witness for the plaintiff. By the judgment of the Court, it is affirmed that the defendant in execution is a competent witness for the sheriff, in an action to recover from a purchaser the amount of his bid, at a sale of the defendant’s property.

The general rule is, that “ the law looks upon a witness as interested, when there is a certain benefit or disadvantage to the witness, attending the consequence of the cause, one way.” No more “ certain benefit to a witness, attending the consequence of the cause, one way,” can be suggested, than the recovery, by a defendant, of the purchase money of his property, sold by the sheriff, under execution. He is interested that the plaintiff should have a verdict; and for the largest amount. The recovery is for his use. The verdict is an instrument of evidence for him to charge the sheriff with the amount of it.

When the effect of the witness’ testimony will be to create, or to increase a fund, in which he may participate, he is incompetent. A distributee of an estate is an incompetent witness to increase or prevent the diminution of the assets of the intestate. Spire v. Austin, Jerry v. Belcher. Acreditar of an insolvent is not a competent witness, in an action by the assignee to recover the assigned effects. Cleverly v. McCullough. Nor, in the same case, can the insolvent be a witness. Rudge v. Ferguson. How much stronger is the objection where the witness is called to testify for the recovery of a fund in which he is solely and exclusively interested.

j fail 568' 2 Hili 447! 1 Car. & P. 253‘

2 New. Rep. 331.

That the principal is not a competent witness to prove a sale by his agent, is so self-evident, that it is not probable a case can be found in which the question has been made. In our decisions, the sheriff, with respect to his official sales, is frequently called and considered the agent of the defendant. A sale by the sheriff is in every particular strictly analogous to a sale by an agent. The defendant has the same interest, in an action by the sheriff, to recover the price of his property, as the principal has, in a like action, by his agent. The verdicts are for the benefit of the defendant and of the principal, respectively; and the judgment would serve each of them equally, as an instrument of evidence. That the principal is not a competent witness to prove a sale by his agent, is conclusive against the competency of the defendant to prove a sale of his property by the sheriff.

In Bland v. Apsley, which was an action of trespass against the sheriff, the question was, whether goods which had been taken by him, in execution, in a suit against A. B. belonged to A. B. or to the plaintiff. A. B. (the defendant in execution) was not allowed to be a witness for the defendant (the sheriff) to prove the goods to be his (A. B’s.) property; because the effect of the evidence “would be to pay his own debts/ with the plaintiff’s goods.” The effect of the defendant’s evidence to prove a sale by the sheriff, would be to pay his debts with the defendant’s money.

If Ford is not competent to prove the sale to Aiken, he is equally incompetent to repel Aiken’s defence to the action, that he was released from the contract, by the transfer of his bid to Peay. This incompetency is determined by his interest in the verdict, and excludes his evidence in every particular which may promote the plaintiff’s recovery. If he cannot directly charge the defendant, by proving the sale, neither can he indirectly charge the defendant by disproving what is alleged in his defence. It is true, that it may be indifferent to him whether Peay or Aiken be charged with the purchase; for both are responsible. But the rules of evidence are not adapted to particular cases. They are of universal application ; and Ford must be equally competent, though Aiken were insolvent, and he interested, to the full amount in dispute, to procure a verdict against Aiken. And he must also be competent to repel every defence, whatever. Any other rule would solve the question of competency, not by the interest of the witness in the verdict, or the certain benefit he may procure by his testimony; but by a distinction between the affirmative of a fact, material to the plaintiff’s case, and the contradiction of a fact, material to the defence; which, in its effect on the result of the case, and on the mind of the witness, is wholly immaterial.  