#### *Head’s rep’s. vs. McDonald.*

Assumpsit.

Case 31.

Error to the Washington circuit; W». *L-*Kbi.lt, Judge.

*Evidence.*Sheriffs’ *sales. Principal and Surety.*

Case stated.

Issue.

Plaintiff’s evidence.

April 28.

Chief Justice Bibb,

delivered the Opinio' of the Court

Mudd made his note for $1,095, negotiable at the Bank of Kentucky, payable to Bigger I. Head, who endorsed it to McDonald, who endorsed it to the President, Directors and Company of the Bank of Kentucky. This note, so endorsed, and unpaid when due, was put in suit by the said President, Directors and Company, against the last endorser, McDonald, and the money was collected by their judgment and execution. Upon this, McDonald founds his action against the representatives of the said previous endorser, Bigger I. Plead, (now deceased) to recover the amount of said judgment and execution.

The action was tried on the issue of non assumpsit, with leave to give the special matter in evidence.

To support this issue oii his part, the plaintiff and endorser, McDonald, gave in evidence the note so as aforesaid endorsed; and to prove the manner of satisfaction made to the bank, and to raise an implied assumpsit to himself, (as last endorser and taker up of the note) from the previous endorser: (Bigger I. Head,) introduced the judgment, execution and sheriff’s return, in the case of the bank against him (McDonald.) jBy this it appears that the sheriff levied upon a slave, named Jim, with other property, which being sold, slave Jim was purchased (at sheriff’s sale, under said execution,) and paid for by Bigger I. Head, at the price -of $501; and by this, with the sale of the other property specified in the sheriff’s return, that execution against McDonald was satisfied. As the price of Jim is the only question of controversy presented by the bill of exceptions, the other credits insisted on, and allowed by the jury, to the intestate, need not be noticed, as they are unconnected with the points made, and reserved by the exceptions taken.

*204Defendant’s evidence.

Instruction moved by defendants, refused.

Evidence excluded on motion of plaintiff.

Instruction on plaintiff’s motion.

In an action by principal against surety for money made by sale of the goods of the surety *205under execution, purchased by defendant, it may be shewn by defendant that plaintiff had before sold the goods to another, who after-wards recovered of defendants vendee.

*204The defendants proved, that before the judgment execution and sale aforesaid, McDonald had soldthc said slave Jim,- to John Slack, and had received payment; that Bigger I. Head had sold the slave to Edward L. Head, and proved by the record, that Slack had instituted his action of trover against said Edward L Head, and had recovered the value of said Jim. The record of the action of trover for Jim, was offered and read by the defendants below, to prove the bare fact of such recovery by Slack.

Upon this evidence, the defendants moved the court to instruct the jury, that if they found, that said McDonald, before the emanation of the said execution, in favor of the bank, against McDonald, made a *bona fide*sale of said slave Jim, *to*Slack, and that he was at the time of said *sale and*purchase, by Bigger I. Head, the property of said Slack, that then they ought to credit said Bigger I. Head with the amount of the price of Jim, paid as aforesaid by said Head, for his purchase under, and by virtue of said sheriff’s sale; this instruction the court refused to give.

The plaintiff, McDonald, then moved to exclude the record of the recovery by Slack against Edward L. Head, altogether. This was done, and the jury were instructed that said record was in nowise evidence in this suit, as McDonald was not a party.

This record being excluded, the plaintiff, McDonald, moved the court to instruct the jury, that they ought not to give a credit to Bigger I. Head’s administrators, for the price of Jim, so paid by the intestate upon said execution, against McDonald in favor of the bank, nor for any part. This instruction was accordingly given.

To these opinions the executors and heirs of Head excepted; and these are the only subjects for revisal.

McDonald counted specially upon the judgment against him, and the compulsion to pay; stated that note, judgment, and compulsion on him to pay, as .the foundation of the assumpsit, and produced the *205judgment and execution, and return, to sustain the assumpsit, as one implied and created by law. McDonald himself, traced the manner and particular items, by which he paid the execution, judgment, and note, for which he claims remuneration from the representatives of Bigger I. Head. His own evidence shews, that the price of Jim, sold under that execution, did discharge five hundred and one dollars thereof; and that said Head paid that sum for Jim to *the*sheriff, for, and on account of that judgment and execution. Now suppose the facts be true, that Jim was not the property of McDonald, at the times of the judgment, execution, levy and sale; that McDonald had before, sold and received payment for Jim, and that he was the property of Slack; then it is *clear*that Bigger I. Head, acquired no property in Jim, by virtue of his purchase at the sheriff’s sale. Suppose that Bigger I. Head sold to Edward L. Head, and that Slack, the right owner of Jim, has made his election to sue Edward L. Head, in trover, for Jim, and has recovered his value. Then it is clear, that Edward L. Head had a right to look to his vendor, Bigger I. Head, for recompense. And Bigger I. Head, having so bought and paid his money for Jim, without'having acquired any title, has a right to his recompense from some quarter. Can McDonald insist upon the sale of Jim to be applied to his credit on the execution, if Jim was the property of Slack, and yet deny to Bigger I. Head, a credit for the sum which he has so paid for Jim, *to the*use of McDonald? Will the law imply a promise from Bigger I. Head, to pay for Jim a second time, to McDonald, when neither McDonald had title to Jim, nor Bigger I. Head either, his former payment to the sheriff notwithstanding? Can McDonald *ex cequo et*bono, receive payment from Slack, and a credit on the execution also, for Jim, and now demand his price a third time from Bigger I. Head’s administrators? Edward L. Head cannot recover for Jim, in a suit against the sheriff, nor against McDonald, nor against the bank; there is no privity of contract between Edward L. Head, and any of those. He must look to Bigger I. Head, the vendor. Slack had his election to sue the sher*206iff, or Bigger I. Head, or Edward L. Head. Helias made that election. By that election, the right of Edward L. Head, to recourse upon his vendor, was fixed. Edward L. Head has recourse to none hut his vendor, upon the implied warranty of title. Bigger L Head, being thus fixed in his responsibility to Edward L. Head, is entitled to have his recourse. That does not depend upon actual satisfaction made to Edward L. Head, his vendee; but arises out of liis fixed responsibility to said Edward. Bigger was not bound to wait an actual recovery by Edward; nor until an actual satisfaction.

*205One who purchases goods at sheriff’s sale, and sells to another, from whom they are recovered by paramount title, becomes immediately entitled to his recoven, before satisfying his vendee: because his responsibility is fixed.

*206Purchasers may recover of the Sheriff in such case.

J udgment between olhors evidence *207_ 0f t])e filot 0f its having b®en n-ri<-ler' p0jellt whon that fact *h*material,

*206Bigger I. Head, had his recourse against the sheriff, it is true; but *ex cequo et bono,*in conscience, and in good faith, McDonald himself, is *the last*and ultimate resource from whom the remuneration is to come, for the price of Jim, which lias been applied to pay the debt due from him upon the judgment and execution. By insisting on the benefit of that sale of Jim, and appropriating the proceeds to his use, and founding his claim thereon, against tiie endorser, Bigger 1. Headj McDonald has confessed, and declared, and assented, that the money so laid out, advanced, and paid to the sheriff, by Bigger I. Head, for Jim, was money laid out and advanced to his use and benefit. By his own evidence, he claimed the benefit of the sale made to Bigger I. Head’, and tailing the evidence which the defendant offered, into *the*connexion, and supposing the facts to be true, which ■that evidence conduced *to*prove, *the*plaintiff had no right to recover of Bigger I. Head’s representatives, the amount of Jim’s price at sheriff’s sale, so paid and laid out to the use of McDonald. Those facts, upon the motion of the court, are taken hypothetically, as if found true by the jury; the-motion for instruction is so, and if so found by the jury, the defendants had a dear right, in justice and equity, to a credit against McDonald, for the sum for which the sheriff sold Jim, *to*Bigger J. Head.

The evidence of the recovery by Slack, against Edward L. Head, was very proper evidence to the single fact, that such recovery ivas had; because it shewed the election by Slack, to take his recourse *207against one of several persons, who were responsible to him. That election concluded him, and determined the order of recourse among the other persons concerned. It was not evidence of the want of title in McDonald: that question was to be decided by the jury, upon the other evidence offered. A recovery in ejectment against an alienee m the most remote degree, or against the tenant under him, is evidence against the first warrantor, to prove the fact, that such eviction had been, but not that it was by title paramount; that must be made out by evidence *aliunde.*See Booker’s adm’rs. v. Bell’s ex’rs. 3 Bibb, 174. Devour v. Johnson, 3 Bibb, 410. Cox v. Strode, 4 Bibb, 4. Gaither v. Brooks, 1 Marshall, 440. The rule of evidence as adjudged in those cases, is in principle, applicable to all cases of records between others, where, upon the fact of such trial and' recovery, the interests of others hang as incidents or consequences. And this seems to have been the view taken, in the cases of Lewis v. Knox, 2 Bibb, 454, and Barr v. Gratz, 4 Wheat. 213, 220. That such suit was brought, and such recovery had, are facts, and to be proved by the record which was offered. The consequences to others, resulting from those facts, apparent from the face of the record, are to be established by appropriate evidence of such other facts as may be necessary to sustain the action or defence.

*Rudd,*for plaintiffs; *Crittenden,*for defendants.

*It seems to this court, that the*circuit court erred in ruling each and every point, as stated in the bill of exceptions taken by the defendants in that court. It is, therefore, considered by this court, that the judgment of the circuit court be reversed, and the verdict set aside, and that the case be remanded for a *venire facias de novo.*

Plaintiffs in this court to recover their costs.