
    Mary Wilson, v. J. N. M’Elwee, Jr.
    In an action of covenant on a warranty of title, a verdict rendered against the purchaser in a suit against him, is conclusive against the vendor, who has been vouched to defend his title, unless it can be shewn that the verdict was procured by collusion or negligence on the part of the purchaser.
    Tried before Mr. Justice Wardlaw, at York, Fall Term, 1846.
    Covenant on the warranty oí title in the conveyance of land. It appeared that the defendant conveyed to the plaintiff, with general warranty: that the plaintiff was sued by Stevens and others, at Spring Term, 1844, in an action of trespass to try the title of the land conveyed, and immediately gave notice of the suit, to the defendant, and required him to defend; that the defendant did defend, and upon trial had at Fall term, 1845, recovery of the land was had by Stephens and others.
    The defendant offered to shew that he had really conveyed a good title, and that the recovery against the plaintiff (then the defendant in the suit brought by Stevens and others) would not have been bad if she had attended Court. It appeared that some copy deeds offered on part of the defendant in the former case, had been rejected for want of the affidavit of this plaintiff, then the defendant, under the act which admits copies, after thirty days notice, and affidavit. The presiding Judge thought that diligence on the pari of this defendant, then defending for this plaintiff, the case of Stevens and others, would have procured the necessary affidavit, but submitted it to the jury, to inquire whether by any collusion with the former plaintiffs, or by any negligence, this plaintiff had procured, or promoted the recovery against her.
    The jury found for the plaintiff, and the defendant appealed, because the Court held and so charged the jury, that the plaintiff was entitled to recover on the defendant’s warranty, although it was admitted that the title of the defendant to the land, warranted, was paramount to that under which the plaintiff was evicted.
    Clawson, for the motion.
    Williams & Beatty, contra.
    
   Evans J.

delivered the opinion of the Court.

As M’Elwee had been vouched to defend his title in the case of Stevens v. Wilson, the verdict in that case on his title is as conclusive against him as against the defendant. If he had conveyed a good legal title, he should have proved it on the trial of that case. If he did not, it was his own fault or his misfortune. M’Elwee failed to establish his title when called on to do so, and has lost bis only opportunity of doing it, unless he could have proved that the verdict in the case of Stevens v. Wilson was procured by some collusion between the parties, or by some negligence of the defendant in that case. There is no pretence of collusion. The only negligence complained of, was that the plaintiff was not present in Court to make some affidavit which was necessary to the admission of some copy deeds. The affidavit I presume could as well have been made elsewhere as in Court. If her presence was necessary she should have been notified. If after such notice she had refused to attend, or had refused to make the affidavit when required to do so before a magistrate, which I apprehend was all that was necessary, then there would have been some ground for the defendant’s defence. The jury have decided the questions of collusion and negligence correctly, as it seems to this Court; and the motion is dismissed.  