Leeds against Leeds and another, 12 Conn. 176

Church, J. This motion shows, that a judgment had been recovered on a probate bond against Cary Leeds, the principal, and Simeon H. Minor, the surety, on which an execution had been issued; and that the execution had been levied upon the land of Cary Leeds, whose sole duty it was to pay the judgment: and also, that the land had been, in due form of law, set off in satisfaction of the execution.

It can require no argument to show, that, if the effect of that levy, was, to satisfy and discharge the judgment debt, then Minor would be forever exonerated and saved harmless from it; and thus directly interested in giving to it such an effect. This effect would be secured, if the only existing objection to it could be avoided ; which was a prior deed and conveyance of the same land given by Cary Leeds to John J. Leeds. The sole purpose of Minor’s testimony was, to invalidate that deedj by proving it fraudulent and void ; and thus give entire efficacy to the levy of the execution.

It is hardly possible to state a case of more direct and palpable interest in a witness, than this. It is contended, that this being an action of ejectment, the judgment here rendered would not bind the title as against any body; and that, therefore, Minor’s rights and liabilities cannot be affected by it. ’ And we are referred, in support of this position, to the cases of Smith v. Sherwood, 4 Conn. Rep. 276. and Bradford v. Bradford, 5 Conn. Rep. 127.

We have no occasion now to review the principle supposed to be established, by the cases referred to; because we are not called upon to say, that this judgment would be conclusive, either as an estoppel or otherwise, upon any one; but only, whether it would be evidence to prove a fact materially conducing to show, that Minor had been discharged from his liability to pay the aforesaid judgment debt against Cary Leeds an(j himself?

That the land was duly set off, as the land of Cary Leeds, to the full amount of the judgment, was certainly prima facie evidence of the satisfaction of that judgment, and of the debt which was the foundation of it. Such evidence would be strongly, and almost conclusively, corroborated, by proof that the creditor had received the actual fruits of his levy, by recovering, in a court of law, the seisin and possession of the land against the only person who could make an adverse claim to it. Such proof, the judgment in this case, if rendered for the plaintiff, for whom Minor was called to testify, would afford.

And it would be quite too much to say, if a scirefacias or action of debt was brought against Cary Leeds and Minor, upon the judgment against them, as an unsatisfied judgment, that the judgment in this case could not be admitted in evidence, in connexion with other proof, as conducing to prove such former judgment satisfied. Bland v. Ansley &, al. 2 New Rep. 330.

There is so far a privity, and even identity, between principal and surety, in most cases, that the surety is necessarily interested in whatever discharges or subjects the principal; and any fact, whether it be a judgment or any thing else, which conduces to show, either directly or as a legal consequence, that the obligation of the principal is discharged, if it be not upon grounds personal to the principal himself, may be shewn, by the surety, in his own defence. 1 Stark. Ev. 187. 2 Id. 747. 1 Pothier on Obligations, 500.

part 4. ch. 3. Willey v. Paulk, 6 Conn. Rep. 74. DeForest v. Strong, 8 Conn. Rep. 514. Minor, therefore, having an interest in showing the satisfaction of the judgment against Cary Leeds and himself, was inadmissible as a witness to'prove that fact, and equally inadmissible to disprove any contradictory fact. No new trial is advised. In this opinion the other Judges concurred. New trial not to be granted.