Kip v. Brigham — 6 Johns. 158

Majority

p. 158

Kip against Brigham and others.

ALBANY,

August, 1810.

Headnote

A sheriff who bond witffsm-e! berties of the fa°pr?sonerd in sued'1foi-1,anWaS scape, and a judgment recovered against notice to 8the suh/which fended lyby the the'-m ejfe d by

Tlie sheriff, afterwards brought an aeforhis indemnL field that there! covery m the conclusive evideuce in the suit on the bond; and that the defendants could of1 the 1 suit1 a! ?helo!¡rnconi trovert the fact of the escape.

THIS was an action brought by the plaintiff, as sheriff of the county of Oneida, against the defendants, on a bond given as security for the gaol liberties, granted to t^le defendant, Abel Brigham, who had been arrested and imPr*sone<^ on a ca‘ sa‘ ™ favour of John Bissell.

At the trial, the plaintiff gave in evidence, the record e 1 ^ of a recovery against him, in favour of Bissell, for the escape of the defendant Brigham ; that immediately afthe suit was commenced against the plaintiff, he gave-notice thereof to the defendants, and the suit was regudefended by the plaintiff, aided by the active cooperation of the defendants’ counsel. The judge ruled, that the record of the recovery in that suit was conclusive against the defendants in this suit, unless they could show fraud or collusion between the plaintiff and j¡issell • And he rejected evidence offered by the defendants, to controvert the fact of the escape. A verdict • was accordingly found for the plaintiff.

. . ... , - A motion was made to set aside the verdict; and the question submitted to the court was, whether the opinion of the judge was correct.

p. 159

Gold, for the plaintiff.

Platt, contra.

There was no misdirection on this point. The case of Blasdale v. Babcock, ( 1 Johns. Rep. 517 .) shows that the record was evidence, in this case, for the plaintiff; and as the bond, on which the suit was brought, was, in effect, a bond of indemnity, the recovery, after notice to the defendants, and their assuming the defence, was conclusive, that the plaintiff had been damnified to that extent. The case of Duffield v. Scott (3 Term Rep. 374.) is to this point; and the present is a stronger case, because here the defendants assumed upon the'mselves the defence of the suit, and became essentially parties. The case of principal and surety, is said (Pothier, Traité des Obligations, part 4. c. 3. s. 3. n. 61.) not to come within the rule of res inter alios acta. The case of Bander v. Fremberger, (4 Dallas, 436.) is also a strong authority in support of the opinion given upon the trial. The suit there was on the covenant of warranty in a deed; and to show a breach, the plaintiff gave in evidence a recovery against him in ejectment, by a third person, and that the defendants had notice of this ejectment, and took part in the defence. The defendant then offered to controvert the title of that third person, and that he conveyed a good title to the plaintiffs; but the court held the evidence inadmissible. The same rule was laid down in the case of Hamilton v. Cutts. (4 Tyng’s Mass. Rep. 349.) The motion to set aside the verdict is therefore denied.

Motion denied.