By the Court,
Johnson, J.
This was an action to recover the possession of a certain horse, on the alleged ground that it had been taken and wrongfully detained from the plaintiff' by the defendant. The plaintiff was nonsuited at the trial, on the ground that he was estoppéd from prosecuting the defendant for the recovery of the horse, by a judgment before rendered in a certain action brought by the defendant against Thomas C. Chase, sheriff of Livingston county who had taken said horse from the defendant by virtue of an execution issued upon a judgment in favor of George M. Pond, against this plaintiff. I do not see upon what principle the ruling to nonsuit the plaintiff, can be sustained. It is a general, if not universal principle, that an action and judgment between two persons, shall not bind or affect a third person, who *405could not be admitted to make a defense, to examine witnesses, or to appeal from the judgment. (Case v. Reeve, 14 John. 81. Castle v. Noyes, 14 N. Y. Rep. 329, 332. Phil. Ev. 222. Greenl. on Ev. § 523.) The plaintiff here was not a party to that action ; nor was there any legal privity between him. and the plaintiff therein. The sheriff, who was the defendant in that action, was the agent of the plaintiff in the action in which the judgment was rendered upon which the execution issued. The parties in that action, were hostile parties, and must be so regarded, until it is shown that they were acting in concert against this defendant. The proceeding by execution, is always regarded as a hostile proceeding against a defendant. It is a proceeding prima facie to enforce the collection of a demand against the will of the other party. The law does not presume that a defendant in a judgment and execution is acting in aid of the plaintiff, and his agent, the sheriff, in enforcing the collection of the judgment. It is of no consequence, prima facie, that the plaintiff was a witness for the defendant in the action brought by this defendant. He had no right, as a witness, to examine or cross-examine other witnesses, or to call other witnesses, who might "have a better knowledge of the facts than himself. In short, as a mere witness he he had no charge or control of the case whatever. And, supposing that judgment was erroneous, for any reason, he had no right of appeal, and no standing by which he could be heard to correct the error. Why, then, should he be bound by the adjudication ? It was not a judgment against him, in any sense, nor upon any right or interest which would subject him to an action for a recovery over, as in a case of a failure of title upon the sale of chattels. But beside all this, that was an action like this to recover the possession of the horse, merely, from the sheriff, and all that was there necessarily determined was, that the defendant had at the time the right of possession as against the sheriff. Upon what the case turned we do not now know. We can readily imagine a case in which such a judgment *406might have been rendered, without determining the question whether the plaintiff here was at the time the real owner of the property, as between him and this defendant. But however that may be, it is plain, so far as appears, that the plaintiff has never yet had his day in court on the question of his title. There is nothing which proves, or tends to prove,- that the present plaintiff defended, or had any right to defend, the "former action. It is claimed by the defendant’s counsel that the sheriff, Chase, who was defendant in the former action, was, in a legal sense, the agent or trustee of the present plaintiff in regard to the property, if it was really his. But this clearly is not so, in any such sense as to make this plaintiff a party in that action, either in form or substance. The sheriff, who was defendant in the former action, was the agent of this plaintiff’s adversary, and was. acting under a power not derived from this plaintiff, but given to him by the law, for the purpose of taking the plaintiff’s property from him, by force, if necessary, and against his will. They were not in privity, as master and servant, or principal and agent. The plaintiff, here, was under no obligation, legal or moral, to defend the sheriff, in that action, and had no legal right to do so, or even to interfere with it in any way whatever, blot being a party to the record, he is not estopped by the judgment unless, in the language of Comstock, 3. in Castle v. Noyes, (supra,) he “ had a right to control the proceedings and appeal from the judgment.” Having no "such right he is not estopped. The nonsuit must, therefore, be set aside and a new trial granted, with costs to abide the event.
[Monroe General Term,
March 2, 1868.
E. D. Smith, Johnson and J. C. Smith, Justices.]