
    The Administrator and Administratrix of Jacob A. Wolfe vs. M. R. Sharp.
    An answer of a witness to one of tbe plaintiff’s interrogatories in chief was excluded, because it appeared, that there was written evidence of the matter testified tc>, which was not produced: — Held, that the plaintiff might read, as evidence, the answer of the same witness to a cross-interrogatory, in which he repeated the testimony given in answer to the excluded interrogatory in chief.
    At an administrator’s sale, made by leave of the Ordinary, an entry made . by his clerk, in conformity to the result announced by the eryer, in the presence and hearing of all parties, is sufficient to charge the purchaser.
    In a suit brought to recover the difference between the amount bid, at a sale by an administrator, and the amount for which the property was re-sold, the purchaser having failed to comply with the terms of the first sale, interest eo nomine may be recovered — the conditions of the sale , being in writing.
    BEFORE GLOVER, J„ AT RICHLAND^ FALL TERM, 1856.
    The report of bis Honor, tbe presiding Judge, is as follows:
    “ At a sale of tbe real and personal estate of tbe late Jacob A. Wolfe, on tbe 9tb, lOtb, lltb, and 12tb of January, 1854, tbe defendant purchased personal property — chiefly slaves— to tbe amount of ten thousand nine hundred and ninety-six dollars; and, not complying with tbe conditions of sale, as is alleged, tbe property was re-sold at bis risk, on tbe 31st of January, 1854. At this sale, a stranger, calling himself Gadsden, purchased some of tbe slaves, and not complying with tbe terms of sale, these were again re-sold on tbe 24th of February, 1854.
    “ The action is assumpsit, and is brought to recover tbe difference between these sales.
    
      “Matthew Hall, who was the auctioneer at the first sale, was examined by commission on behalf of the plaintiff. In answer to the seventh direct interrogatory, Hall recited the terms of sale, and stated that they were publicly read. An objection, by the defendant, to the admissibility of this evidence, was sustained on the ground, that the paper from which the auctioneer ■ read should have been produced. Responding to the first and second cross-interrogatories propounded by the defendant, Matthew Hall says that the terms, which were written by John Fox, were publicly read, and that purchasers were required to give notes payable at twelve months without interest and with approved security. Several witnesses proved that the terms of sale were announced publicly, and some of them, that the defendant was near enough to hear.
    
      “ I believed that the evidence offered, in proof of the conditions of the sale, was sufficient to go to the jury, and the motion for a non-suit was refused.”
    The defendant appealed and now renewed his motion for a non-suit, upon the grounds:
    1. Because, by the proof of the plaintiffs, there were written or printed conditions, or terms of sale, and they were therefore bound to produce them, or account for their loss.
    2. Because it was clear from the plaintiffs’ proof, that if there was any contract at all between the parties, such contract was under the Statute of frauds and perjuries of 29 C. 2, in force in this State, and was void under the 17th section of that Statute.
    3. Because his Honor, the presiding Judge, it is respectfully submitted, erred in permitting this very brief and loose statement of Hall, the plaintiffs’ witness, as to the terms of this contract, in answer to a cross-interrogatory to go to the jury as evidence of tbat contract, after bis Honor bad previously ruled tbat tbe plaintiffs, having proved tbat there were written or printed terms or conditions of sale, were bound to produce them.
    And failing in tbat motion, then tbe defendant moved for, a new trial on tbe same grounds, and also upon tbe grounds:
    1. Tbat tbe finding of tbe jury on tbe point of tbe compliance by tbe defendant with tbe terms of sale was against tbe clear and direct evidence.
    2. Tbat tbe jury, by their verdict, allowed interest eo nomine in favor of tbe plaintiffs.
    
      Pearson, Tradewell, for appellants.
    
      Tally, Arthur, contra.
   Tbe opinion of tbe Court was delivered by

O’Neall, J.

In considering this case, I will first take up tbe first and third grounds together.

1 and 8. There is no doubt, if, as in McBride vs. Ellis, 9 Rich. 269, tbe whole of tbe interrogatories in chief are swept away, tbe cross-interrogatories and answers cannot be read. But tbat is not tbe case here. Only one answer, tbat to tbe seventh interrogatory in chief, was excluded on account of conflicting with a rule of evidence: tbe cross-interrogatories and answers were not thereby excluded. In Pulaski, Jacks & Co. vs. Ward & Co., 2 Rich. 121-2, it was said, “It has always been allowed to either party to use tbe questions of and answers to bis adversary.” Tbe second cross-interrogatory was perfectly independent of the interrogatories in chief, and was a distinct admission by the defendant that “ the terms of sale were twelve months credit without interest, purchaser to give note with good security.” The witness answers reiterating the terms, as the defendant stated them, and as the plaintiffs would have proved them, by the seventh interrogatory in chief. We think the judge was right in allowing the cross-interrogatory and answer to go to the jury. The defendant has only realized on this occasion what often occurs, .that a cross-examination proves the plaintiffs’ case.

2. Under the defendant’s second ground, arises the question, whether the memorandums in writing were sufficient, under the 17th sec., 29 Car. 2, to charge the defendant? And here we must look to the sale bill; were the entries in it made by a competent person to charge the defendant ? The rule is settled, that an auctioneer is the agent of both parties, and his entry is enough to charge vendor and vendee. The same rule was extended to the Commissioner or Master in Equity, in Gordon vs. Sims, 2 McC. Ch. 151. It will be remembered, as the reason why I notice this case, that the Commissioner was not the crier of the sale, another person did that duty. He (the Commissioner) was the agent of the Court, and of the parties to make the sale, hence his entry, and not that of the crier’s was looked to. There is in this •respect a marked difference between administrators’ sales, and those of a vendue master. The latter is authorized by both parties to make the sale, hence as in Entz vs. Mills & Beach, 1 McMull. 453, he must make the entry, and his clerk cannot. There is another and perhaps a better reason why he must make the entry; his book containing such entry is by law evidence of the sale. Bennett ads. Carter, Dud. 142. The cases of Cathcart vs. Keirnaghan, 5 Strob. 129, and Simmons vs. Anderson, 7 Rich. 67, sufficiently show that sales by administrators are not governed by the rule of Entz vs. Mills & Beach, and that an entry made by the clerk of the administrator and administratrix, in conformity to the results announced by the crier, in the presence and hearing of all concerned, is sufficient. The administrator and administratrix, it must be remembered, sold under the authority, of the Ordinary. His order, like the decree in chancery, authorized the sale, and fixed the terms, and hence all persons, the crier and clerk, wlio are necessary to make the sale, may well be regarded as the agents of the administrator and administratrix, the vendors, and the purchaser, the vendee. Such is the invariable usage, and it would produce immense confusion to decide against it.

In this case, we have the defendant’s admissions of the terms of the sale in the cross-interrogatories, and further, in writing, that he did buy at the sale, in his note offered to the. administrator and administratrix. The only remaining fact wanting, to charge him, is the property purchased and the amount. This is fixed by the testimony of Pox, proving the sale bill.

4. The only remaining ground, is that which relates to the finding of interest eo nomine, on the sum found for the plaintiff.

I have never been satisfied with Ancrum vs. Sloan, 2 Speer, 594. That was an action on the warranty of a pair of horses, and the jury found for the plaintiff, a sum of money with interest from the sale. Unquestionably that was right under the rule settled by Furman vs. Elmore, decided in 1812, 2 N. & McC. 189, note. The rule established by it, was, that the purchaser on a warranty, where there was a breach, should recover the purchase-money and interest, so as to place him in statu quo before the sale. But whether the decision in Ancrum vs; Sloan, be right or wrong, is unimportant here. In this case the interest was clearly recoverable. Por here the recovery is upon a written contract for the payment of money, at a time certain, and in such a case the rule is well settled tbat interest may be found, as it was in this case, though I always prefer, that the interest should be computed and- added to the principal and the aggregate found by the verdict.

The motions for nonsuit and new trial are dismissed.

Wardlaw, Withers, Whither, G-lover and Munro JJ., concurred.-

Motion dismissed.  