
    Hoy et al. v. Couch.
    The certificate of the reversal of a judgment made by the clerk of the High Court of Errors and Appeals, is admissible in evidence to prove that the judgment has been reversed.
    If the original judgment is reversed on writ of error, the forthcoming bond and judgment thereon are void, and it is not necessary to enter a formal motion to quash the latter.
    IN ERROR from the May term, 1840, of the circuit court of the county of Madison.
    This was a proceeding under the statute for the trial of the right of property taken on execution.
    It appeared that at the May term 1837, of said court, that Thomas J. Couch recovered judgment against John White for the sum of four thousand five hundred and nineteen dollars, forty-six cents and costs. A fieri facias was issued on this judgment, a forthcoming bond taken, with Alford Haley as security, and forfeited on the 23d of October, 1837, and an execution regularly issued on the forfeited bond.
    The execution on the forthcoming bond was superceded by a writ of error, granted the 14th of February, 1838. At the January term of this court, 1S39, the defendant in error confessed errors, and the judgment below was reversed.
    On the 30th of IVIarch, 1839, and after the reversal of the judgment an alias execution was issued on the forthcoming bond, and subsequently levied on the slaves in controversy, eight in number, as the property of White. William Hoy and W. N. Thom filed their claim on oath to said slaves, and gave bond in pursuance of law, to try the right of property to the slaves.
    An issue was regularly made up for that purpose at the May term of the circuit court, 1840, A trial was had, and the jury found that the property was liable to the execution, assessed the value of each slave, amounting in the aggregate to the sum of three thousand four hundred and twenty-five dollars. The jury further found that the claim of Hoy and Thom was made for ■purposes of delay; upon this finding .the court proceeded to give judgment "that the said Thomas J. Couch recover of the said claimants said negroes, and ten per cent, on their assessed value, if to be had, and if not, the sum of three thousand four hundred and twenty-five dollars, the assessed value of the slaves, and also the sum of three hundred and forty^two dollars and fifty cents, damages, for delay and costs.”
    It appeared in proof that the slaves in controversy were the property of the said White, at the time of the rendition of the judgment against him and Haley on the forthcoming bond.
    The claimants asserted title to the slaves under a general conveyance by White to them of all his property then in his possession, to secure certain debts and liabilities, which conveyance bore date February 12th, 1839. Also by virtue of a .bill of sale of the slaves in controversy, to the claimants, dated April 3d 1839, and by which it was especially agreed that in consideration that the claimants should pay certain specified debts, for which they were bound for White. It was further proved, that they were paid or assumed by the claimant.
    On the trial the clairfiants offered to read a transcript of the judgment of the High Court of Errors and Appeals reversing the judgment below, from which the execution emanated; but it was ruled out by the court.
    The plaintiff in the execution introduced as a witness, White, the security in the forthcoming bond, who on being asked, if he were interested in the result of the suit, said he was, for if it terminated for Hoy & Thom he should have the debt hanging over him, which was not the understanding between him and Hoy & Thom. The claimant’s counsel objected to his testimony, but it was admitted on the ground that his interest was equally balanced between the parties.
    Claimants asked the court to instruct the jury, that if the said deed, or contracts were otherwise valid, that the judgment was not a lien on the property.
    That if there was no judgment in favor of Couch v. White to support the execution on which the forfeited delivery bond was taken, and judgment referred to in the execution levied on the property in this case, that said execution and the judgment upon which it is founded are null and void; and that the title of said Hoy & Thom cannot be disputed in this case.
    That no judgment on a delivery bond was good when there was no original judgment to support it, but the court refused the instruction, and charged, that the judgment was valid, and a lien on the property, although otherwise said deeds, or contracts would be valid in law.
    The claimants moved the court for a new trial on the grounds of the foregoing exceptions, which was refused.
    Howard, for plaintiff in error.
    ]. The testimony of White ought not to have been admitted. He was a party to the record, being one of the defendants ,in the execution which was levied, and out of which this trial grew. He declared that he Avas interested in the event of the suit. His interests were evidently directly opposed to those of the claimants, for his own liability to pay, as he declared, depended on the result of the claim, as the defendant in the execution was insolvent. The property in controversy Avas that mentioned in the bond. If the plaintiff in the execution succeeded, this property would go to discharge the witness, otherwise, he must have ■ been satisfied out of his own property. The liability was not only direct, but depended on the result of the suit in which he Avas called. It is difficult to imagine a stronger interest.
    If the witness is either a gainer or loser by the event of the suit he is incompetent. 2 Starkie’s Evid. 746. And if he be likely so to become by the result of the suit, he is incompetent. 2 Pick. Rep. 240. 11 Eng. Com. Latv. Rep. 380. 3 lb. 320. 5 Conn. Rep. 262. 4 Mass. Rep. 418. 2 Mun. Rep. 48. 4 Bibb, 445.
    A party to a judgment cannot be called as a witness except by consent. Brown v. Brown, 4 Taunt. 753. 4 Eng. Com. Luav Rep. 48.
    One joint obligor cannot be called as a witness for or against his co-obligor, where his testimony Avould effect his own ultimate liability on the bond, or his interests growing out of the transaction embraced in. the bond. 7 Cranch, 206. 14 Sergeant & RaAvle’s Rep. 135.
    
      2. The judgment of this court was regularly certified by the clerk, and should have been admitted in evidence. The transcript of the judgment alone is amply sufficient to establish the fact that such a judgment was pronounced, and all the legal consequences which flow from it, and is conclusive to that extent. 1 Starkie, 183, Part II. Ib. 224, 245. Cowper’s Reps. 17.
    In the case of Doe ex dem. Gild art v. Starke, a transcript of the judgment was held to be sufficient.
    3. The instructions asked of the court were substantially correct ; and that given, was wrong. There can be no doubt that the execution was absolutely void, and the clerk would be liable to an action of trespass for issuing it. There was no judgment from which it emanated. The judgment had been reversed and a hew trial awarded. The fact that the writ of error issued improperly does not affect the question. The party instead of taking advantage of this irregularity, confessed errors. He is therefore precluded from taking advantage of it in any subsequent proceedings.
    The only title set up against the claimants was a pretended judgment lien in a case where the judgment had been reversed. It was certainly competent for the claimant to show that there was no judgment, and that the plaintiff had no right to his execution. If the execution in this cade conferred any authority, couits may be dispensed with. It would only .be necessary to apply to the clerk for an execution, instead of coming into court for judgment and the ascertainment of legal rights.
    Had there been no reversal of the case, an execution issued before a decision, would have been void. 1 Pick. Reps. 211.
    The judgment on the bond is vacated, of course, if the original judgment is reversed. 7 Cranch, 288. 3 Bacon, 116. The superstructure cannot stand after the foundation is swept away.
    Forrester on the same side.
    W. Yerger, for defendant.
    1. The court did not err in admitting Haley, (White intended,) because he was the defendant in the execution, and he sold the slaves to Hoy & Thom; and therefore, as the court remarked, his interest was counterbalanced, and his evidence competent. 1 Starkie on Et. 118, 119. But admitting the law to be that White was incompetent, this court will not reverse by reason of his admission, because the bill of exceptions does not set out the evidence which he gave, nor does it in fact appear that he gave any evidence at all. This court has already decided that to reverse, because of the exclusion or admission of an incompetent witness, his evidence must be set out, in order that the court can see what effect it had, or might have had on the result, or it will not reverse. Selser v. Ferriday, page-of Opinion Book.
    2. It was not error in the court to exclude the certificate of reversal from the High Court. That certificate was not the whole record, and nothing but the whole record is admissible. 1 Yerg. 261. 1 Starkie, 163. It may be that a case of Couch v. White was reversed in the High Court, but to have been evidence on the trial of the right of property, the whole record was necessary, that the court and jury could have seen that it was the same case as that in which the forthcoming bond was given. To have admitted the certificate of reversal, without other evidence, might have prejudiced the plaintiff’s cause, by confusing the mind of the jury, by evidence insufficient, and in fact incompetent.
    3. The court did not err on the facts set out in the bill of exceptions, in refusing the charges asked by the claimant’s counsel, because those charges, however correct they may have been, though we do not admit them to have been correct, were irrela-vant; and this court has often decided that it is not the business of the circuit judge to charge any principles of law, except such as are relavant and applicable to the case before the jury.
    The judgment upon the forthcoming bond, was a satisfaction of the original judgment, and the court could not look back behind it, to see whether the original judgment was void, or had been reversed or not. 1 Howard, 64. United States Bank v. Patton, 566 of Opinion Book. 1 Howard, 98.
   Chief Justice Shaekev

delivered the opinion of the court.

A fieri facias was levied by the sheriff of Madison county on eight negroes as the property of White, the defendant, in execution. They were claimed by the plaintiffs in error, who gave bond and made up an issue to try the right of property. White had sold the negroes in 1839 to the plaintiffs in error. In 1837 the defendant in error had recovered judgment against White, which was a lien on the negroes. In October, 1837, White gave a forthcoming bond, which was forfeited, and had the force and effect of a judgment. Afterwards the original judgment was taken up to this court by writ of error, and without making any objection on the ground that a forthcoming bond had been given, Couch confessed the errors and the judgment was reversed. After-wards he sued out execution on the forfeited forthcoming bond, which was levied as above stated' on the negroes. The plaintiffs contend that the reversal of the original judgment, vacated necessarily the statutory judgment on the bond, whereby the lien on the property was removed.

On the trial of the issue, two questions were made: first, White was introduced by the defendant in error, and being examined on his voir dire, said he was interested, whereupon the plaintiffs objected to his testifying, but the objection was overruled, because the court supposed his interest to be equally balanced. This question is easily disposed of. We are not informed what his testimony was. For any thing that appears, it may have been cumulative only; or it may have been wholly immaterial; or it ■ may have been in favor of the party who objected to it. His testimony should have been inserted in the bill of exceptions, so that we could have judged of its tendency.

Second. The certificate of the reversal of the original judgment from the clerk of this court under his official seal, directed to the clerk of the circuit court of Madison county, was also offered in evidence by the plaintiffs in error, and objected to by the defendant, which objection was sustained and the certificate ruled out; and in this it is said the court erred. This is true if the evidence is material. By the statute, H. and H’s. Digest, 533, sec. 10, the clerk of this court is required to certify every final judgment or decree to the clerk of the court from which the cause was brought, within twenty days after the adjournment of this court. He is not required to send back the whole record, but only the judgment. His duty was therefore correctly performed, and being an official act required by law, and in due form, was admissible under the general rule, if it was pertinent. It was not introduced to prove a judgment, but to prove the reverse, that there was no judgment. The rule in reference to the introduction of records does not apply to it. It is true that it might have been necessary to identify the judgment which had been reversed, so as to give the certificate a proper application. The means of doing this were in the court below; the record of the case was there, and the identity could have been established by the proceedings in the case. But was it material? It certainly-was, if by the reversal of the original judgment, the statutory judgment on the bond was thereby also reversed. In that case there was no judgment which could operate as a lien on the property, or support the ji.fa. , In the case of Barton v. Petit and Bayard, reported in 7 Branch, 288, it was held that a judgment rendered on motion against the obli-gors in a forthcoming bond, according to the laws of Virginia, would be reversed of course, if the original judgment was reversed ; and yet the court did not go so far as to say that the reversal of the original judgment was ipso facto a reversal of the dependant judgment. There was no error in the judgment on the bond, and yet it was reversed merely on the ground of the reversal of the original judgment. The principle is thus laid down, in 3 Bacon, 116. If a man recovers in debt -upon a judgment, if the first judgment is reversed the second shall also.-” A case is there cited in which the court took time to advise, whether by the reversal of the first judgment, the other was not ipso facto void. And another in which it was said, that the reversal of the first judgment does not reverse the second, but defeats it so that the plaintiff shall have no fruit thereof.” These authorities bear directly on the case before us.

The statutory judgment on the forthcoming bond, is like a second judgment recovered on a first in effect; and yet it differs in this, that there is no judgment of the. court, but the effect of a judgment is'given by statute. As there is no judgment entered by the court, a writ of error is not necessary, but the bond will be quashed on motion. It differs also from a judgment in Virginia on a forthcoming bond; there a judgment is formally entered on motion: now if the judgment on the bond, or what is the same thing, the bond itself, would be quashed on motion as a matter of course, it may be well questioned whether it can have such a binding effect as to operate as a lien to the prejudice of a purchaser. And if the reversal of a first judgment defeats a second, so that the plaintiff shall have no fruit thereof,” certainly the same may be said of this judgment on the bond, and with greater propriety, since no writ of error is required to reverse it, and it is considered as dependant on the first judgment. The reversal of a second judgment seems to be a mere matter of form, as it will be reversed of course, and without any error in it. No good reason is perceived why the plaintiffs in this case should be driven to a motion which is so much a matter of form as to be granted of course; but if it were necessary, the court under the circumstances, might suspend the proceedings until that motion was made. But it is not deemed necessary that such a course should be pursued. This further distinction may be taken between a second judgment recovered on a first, and the judgment on the forthcoming bond. In the first case, the judgment is rendered in a suit regularly instituted; in the second, the judgment arises by mere operation of law on the process of execution ; and must be considered as an adjunct to, or in aid of the first judgment; strictly dependant on the first for its validity and support. Hence it may with great propriety be said, if the first judgment be reversed, the plaintiff shall have no fruit of the second. In this view of the subject, the certificate of reversal offered in evidence' was material. It was evidence that the original judgment had been reversed, a consequence of which was, a defeat of the statutory judgment oir the bond: which being defeated, the lien was destroyed, and the sale by White being undisturbed by a judgment lien, secured to the plaintiffs in error a perfect title.

This view of the case is fortified by an additional reason. The plaintiffs in error were not parties to the judgment against White, and their right to quash the bond by motion, against his will, may well be questioned; and if this could not be done, they might be injured without the means of redress.

We therefore think the certificate which was rejected, should have been admitted as evidence, and that the, judgment for this reason must be reversed, and the cause remanded.  