HOOPER versus PAIR, 3 Port. 401

Hopkins, J. The first question presented by the record, in this case, is, has the claimant a right, upon the trial of the right, to property, to prove that the judgment of the plaintiff in execution, had been fraudulently obtained by him? Into the compten-cy of such evidence to procure any remedy which the common law or Chancery might have afforded to the claimant, if he hud not resorted to the procedure allowed by the statute law, it is not necessary, now, to inquire.

The statute, under which the issue between the parties was made, directs, that it shall be so formed as to try the right of property; and the issue in the case, was, that the property was, at the time the levy of the execution was made upon it, subject to the satisfaction of the execution. The statute neither authorises an issue which would, nor does the one in the case, question the regularity or justice of the judgment of the plaintiff in the execution. A verdict upon such an issue, must be, that the property belongs either to .the claimant, or is subject to the execution against the defendant.

The right of neither depends upon the judgment: neither claims the property under it. At the time of the trial of the right to the property, the judgment was a link in no one’s chain of title to it. That the judgment was just, neither the law nor the issue, required the plaintiff to litigate, or authorised the claimant to inquire of. The admission of the evidence, which the claimant offered, to show 1 hat it had been fraudulently obtained, would have violated the settled rule, that requires all testimony, not pertinent to the issue, to be rejected.

We shall next inquire of the correctness of the instruction of the Circuit Court, to the jury, as to the effect of the evidence of the claimant which was offered and admitted.

The evidence consisted of a transcript of a record .of a judgment by confession, of a Court in the State ■of Tennessee, in his favor, against the defendant in execution — a judgment, founded upon that rendered for him, by a Court of this State, by default, against the same defendant — an execution, which issued upon the latter judgment, and a sale of the property, by the sheriff, who levied the execution, to him.— upon this testimony, the Court instructed the jury, that a judgment by confession or default,- was no evidence against the plaintiff in execution, who was neither a party nor privy to it, that the defendant in execution was indebted to the claimant, when such judgment was rendered.

From the commencement of the first suit, to the end of the second, and the termination of the matter, in the sale of the property by the sheriff, no inquiry was, or could have been made either by the Court in Tennessee, or in this State, into the existence of the debt, alleged to be due from the defendant in execution, to the claimant. In one Court, it was confessed — in the other it was demanded ; and the defendant did not appear to deny it.

If the claimant had made title to the property through a bill of sale, from the defendant to him, which acknowledged the payment, by him, of an ample consideration, such an instrument, without proof, by a witness, that the consideration had been paid, or the payment of it secured, would have been no evidence against the plaintiff, of title in the claimant.

A judgment, execution, and a sale, _ under the latter, form a mode of transferring property, from the defendant to the judgment, to the purchaser under,the execution; but, as no point was tried, in the cause, the judgment, though it is conclusive .evidence, against the defendant to it, that it, was for ¿a just demand, is no better proof against the plaintiff in execution, than a bill of sale, without the testimony of a witness, that it was made upon a valuable consideration would be.

In this transfer, the knowledge ofthe consideration for it, or the want of one, isas exclusively confined ‘to the parties, as it would be, if the property had been sold by the defendant in execu tion, to the claimant, in the absence of all persons, who might have been witnesses. ' „T , , ... . We think there was no error in the instruction. But the Court erred, in rendering-a judgment for the costs, against the sureties of the claimant. Let the judgment be reversed, and the proper judgment be rendered, against the claimant. Collier, J., not sitting. Aik. Dig. 168. Robertson F. C. 488, 489—1 Marshall 179.