Benjamin vs. Smith, 12 Wend. 404

By the Court, Sutiiekland, J. The' action rests upon the allegation that the execution of Rathbone and Hunt had become dormant and lost its priority, and that the proceeds of the sale therefore belonged to the plaintiff, and should have been applied upon his execution.

The jury were correctly instructed by the judge that the execution of Rathbone and Hunt was fraudulent as against the plaintiff, if the delay upon it was occasioned by their interference or directions: that whether it was so occasioned or not was a question of fact for them to decide; and that if they should find that execution to have been fraudulent, then the' plaintiff would be entitled to their verdict. The jury found a verdict for the defendant, and have of course decided the main fact upon which the action rests, against the plaintiff. The verdict cannot be disturbed as being against the weight of evidence.

There was sufficient doubt in the case to preclude the interference of the court with the finding of the jury. It only remains to consider the objection to the competency of Haines and Hunt as witnesses for the defendant. The defendant, in his return to Rathbone and Hunt’s execution, stated that he had paid over $77,62, part of the proceeds of the sale, to Haines, the landlord of Nichols, for rent claimed to be due, &c.; and he called Haines as a witness to sustain this part of the return. He was objected to, but was admit- . ted by the judge. Lord Ellenborough, in precisely a similar case, Keightly v.

Birch, 3 Campb. 523, 2 Phil. Ev. 238, held the landlord to be an incompetent witness, on the ground that if the plaintiff were to succeed against the sheriff, the landlord would be liable to an action at the suit of the sheriff, in which the judgment against the sheriff would be evidence of special damage. The money having been voluntarily paid by the sheriff to the landlord, with a full knowledge of all the facts in the case, I should very much question whether it could in any event be recovered. Conceding this witness to have been incompetent, however, it affords no ground for granting a new trial.

It is one of those cases in which the court can see, beyond the possibility of doubt, that the evidence had no influence upon the verdict. It went merely to the question of damages — to reduce the amount which the plaintiff would be entitled to recover, if he should recover at all. But the jury have found that the Rathbone and Hunt execution was not fraudulent; that the defendant’s return therefore was not false ; which disposes of the very foundation of the plaintiff’s' action. The question of damages never came under their consideration.

It is well settled, that a verdict will not be set aside on account of the admission of improper or incompetent evidence under such circumstances. The objection to Hunt is not so free from difficulty. He was one of the plaintiffs in the dormant execution, and joined with his partner, Rathbone, in a full bond of indemnity to the plaintiff against the consequences of the application of the proceeds of the sale to their execution.

This instrument recites, that Rathbone and Hunt had requested the plaintiff to return the plaintiff’s execution nulla bona, and to apply said proceeds upon theirs : and in consideration thereof, indemnifies him against all consequences. This instrument bears date the 13th day of May, 1828. On the 13th of December following, this instrument was cancelled, and the defendant released and discharged Hunt from all liability, claims or demands, growing out of the same; and on the same day he took a new instrument of indemnity from Rathbone, with surety.

On the 12th of February, 1831, Rathbone, (the partner of Hunt, the witness,) released and discharged him from all liability, claim or demand, by way of contribution or otherwise growing out of this transaction. These releases were given subsequently to the first trial of this cause, in December, 1828. 4 Wendell, 232. Hunt was not offered as a witness upon that trial. Rathbone and Hunt having indemnified the defendant, were the real parties in interest in the cause ; so much so that their declarations would have been competent evidence against the defendant. 4 Campb. 38. Stark. Ev. pt. 4, p. 42. 4 Wendell, 335.

If the plaintiff should succeed in this suit, they would be liable to him for his costs, 1 Wendell, 295; perhaps might also be responsible to the defend* ant>s attorney for their costs, if they could not be obtained from him. If the plaintiff should recover against the sheriff, and not be able to obtain satisfaction, 1 am inclined to think he might maintain an action against Rathbone and Hunt for the money paid over to them.

It was not a payment voluntarily made to them by the sheriff, in the discharge of his official duty, but a payment procured by their solicitation, and upon their indemnity; whereas a verdict against the plaintiff in this action would be conclusive as to all claims against Rathbone and Hunt, in relation to this transaction. None of these interests are reached by the releases. The ' liability for the plaintiff’s costs, if he should ^recover, is clear and certain, and is of itself sufficient to render the witness incompetent. Jones v. Savage, 6 Wendell, 660. A new trial must therefore be granted.