6 Johns. 158 | N.Y. Sup. Ct. | 1810
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.