Valentine Pruit and John Martin vs. Squire Lowry, 1 Port. 101

By Mr. Justice Thornton : This was an action of trespass, brought by the defendant in error, Lowry, (who was a purchaser from one Townsend, who held by bill of sale from Cottrell,) against the plaintiffs in error, for forcibly taking a negro from the possession of Lowry. The first error assigned, is the admission of Cottrell to testify in said cause, who was introduced by the plaintiff below.

The witness was objected to on the ground of incompetency ; and the relation in which he stood to the parties was, (as was made to appear to the Court) as vendor of the negro to said Townsend, who sold to Lowry — and as defendant in sundry executions in favor ofPruit, by virtue of which, the defendant Martin had levied on the negro in question, and sold to Pruit.

As a general proposition, N it must be admitted, that a vendor of property is directly interested in maintaining the title of such property, when it is brought into contest by action against his vendee : his liability over in case of a recovery, is a direct consequence. In a ease however, where the consequences would be the same to him, let the contest be decided in either way — as where he had .conveyed the same subject to both litigants ; an equipoise of interest would render him competent.

So in the ordinary case of .a trial of the right of property, under our statute, where the property is levied on as his own after a sale of it, and his vendee is the claimant, here it might reasonably be supposed that he would be interested to subject the property of another to the payment of his debt, and so interested against the claimant, but his liability in such event to his vendee, the claimant, would bring about an equilibrium of interest, and leave him a competent witness.

But here there was, as I conceive, an interest inclining the witness to the side of the plaintiff Lowry, and no conceivable interest to countervail the bias — for the execution could not be levied again on the same negro, and the amount produced by the sale was a credit upon the execution to which Cottrell would be entitled, no matter how the title might be determined. For this cause alone the judgment would be reversed, and the cause remanded.

It is, however,' deemed proper to decide now upon the point which is brought to view by the other assignments of error, as it constituted a material portion of the cause on the former trial, and will inevitably arise in its further progress below. The bill of exceptions discloses that the negro sued for, was taken by defendant Martin, by virtue of executions in his hands as constable, issued upon judgments against the witness Cot-trell — and that the sale of the negro was made, as the return of the executions shows, by the said Martin.

Proof was adduced by the plaintiff to contradict this return in the last particular, showing that the actual exhibition of the negro at the time of sale was by one Milam, and that the crying off, as it is termed, was done by one Caldwell an auctioneer, who was procured by the said Milam — but that Milam acted in the part he bore in said sale, for defendant Martin, and under his sanctioh.

All the instructions given by, and the refusal of that asked for, of the. court, evidently proceeded from the position of law assumed to be true — that the sale under the executions, not being made under the immediate direction and cognizance of Martin, but according to the manner disclosed in the testimony above recited, was void, and that neither the justification of the officer Martin, nor the title of Pruit derived from the sale so made, could be maintained. We consider that the sale so conducted was not void, and that the jury should have been so charged.

As to any other points raised in the argument from the view above taken, it is unnecessary 10 respond. Let the judgment be reversed, and the cause remanded. The Chief Justice, Lipscomb, dissented as to the competency of Cottrell.