
    Hughes v. McClelland and Another.
    In an action against a sheriff for failing to deliver toliis successor in office an execution placed in his hands, the successor is not a competent witness to prove that it was not delivered to him.
    ERROR to the Fayette Circuit Court.
    
      Wednesday, May 25.
   Davison, J

This was a proceeding by notice and motion against Hughes, the plaintiff in error, as sheriff of Johnson county.

The notice alleges that McClelland and Pucket, on the 10th of April, 1846, recovered a judgment in the Fayette Circuit Court against Thomas Williams and others, for 130 dollars and 63 cents, with costs, &c.; that on the 3d of June, 1847, an execution was issued thereon, which was, on the 9th of the same month, received by Hughes, who, at that time and for the space of one year thereafter, was the sheriff of Johnson county; that he failed during the life of the execution to levy the same, although he might have done so; and that he did not return said writ within twelve, months from the time he received it; nor did he deliver said writ to his successor in office.

There are four pleas. 1. The general issue-—not guilty, &c. 2. That while Hughes had the writ in his hands, but one of the execution-defendants, viz., Edward Williams, resided in Johnson county, and that he was insolvent and had no property whereon to levy. 3. That in the month of August next after he received said writ, and prior to the execution thereof, he went out of office, and thereupon he handed the same over to one Robert Johnson, his successor in office. 4. That neither of the execution-defendants had property within his bailiwick whereon to levy, during the life of the execution.

The first plea was withdrawn. Replications were filed in denial of the other pleas.

The cause was submitted to the Court. Judgment for the plaintiffs below.

The evidence is on the record. It was proved by Culver, a witness, that Hughes received the writ on the 9th of June, 1847; that Edward Williams was the only one of the execution-defendants residing in Johnson county; that he was reputed insolvent, and that Hughes could find no property whereon to levy the execution; that his term of office as sheriff expired in the month of August, 1847, and that Robert Johnson was his successor in' that office. It was also proved by Sibert, another witness, that Johnson went into office on the 21st of August, 1847, and that the writ was in his hands in the summer of the year 1848. There was also evidence tending to prove that the writ was in his possession during its life. The writ was issued on the 3d of June, 1847, and an indorsement thereon, proved to be in the handwriting of Johnson, shows that on the 13th of September, 1848, he returned the same “no property,” &c.

The plaintiffs offered Johnson as a witness in the case. Hughes objected to his admissibility on the ground that he was incompetent. The Court overruled the objection. He was sworn, and testified, inter alia, that the execution was not delivered to him, nor was the same in his hands at any time before the return-day thereof.

The only question raised is, was the witness incompetent on account of interest?

It was the duty of Hughes, upon the expiration of his term of office, to deliver the writ over to Johnson, as his successor. Whether he did so, was an important inquiry on the trial. The testimony of Johnson tended directly to prove that such delivery was not made, and thereby to fix upon Hughes a breach of duty. Johnson went into office in the life of the execution, and within three months after it was received. It was found in his hands, and he made return thereon after the proper time for such return had elapsed. The facts presented, apart from the testimony of Johnson, in our opinion, clearly establish the position that the witness was at least prima fade liable to the execution-plaintiffs.

Would a recovery in their favor in this proceeding bar an after action against the witness for the same cause ? The question must be answered in the affirmative. The general rule is, that a verdict is evidence only between the same parties, or such as claim under them. But the reason of the rule does not apply when the verdict is produced against the party who succeeded in the former action. 1 Phill. Ev. 231, 233. The success of the plaintiffs in this cause would discharge the witness of all liability to them. Hays v. Grier, 4 Binn. 80. Raymond v. Simonson, 4 Blackf. 77. Jenners v. Oldham, 6 Blackf. 235. McClure v. Whitesides, 2 Ind. 573.

S. W. Parker, for the plaintiff.

J. A. Fay and J. S. Neuman, for the defendants.

We think the witness had such an interest in the event of the proceedings as rendered him incompetent.

Per Curiam.

The judgment is reversed with costs.  