
    Bond v. Brady.
    
      Thursday, January 4, 1844.
    In debt against a constable for an escape on execution, the execution-debtor is a competent witness for the constable.
    ERROR to the Wayne Circuit Court.
    
      J. S. Neuman, for the plaintiff.
    
      J. B. Julian, for the defendant.
   Blackford, J.

— This was an action of debt, commenced before a justice of the peace against a constable for an escape on execution. There were five pleas, the second and fifth of which were struck out on the plaintiff’s motion. The first plea was nil debet; the third, that the execution-defendant, Aydelott, was discharged from custody by the license of the plaintiff; and the fourth, that said Aydelott was discharged by order of the plaintiff’s attorney. The justice gave judgment for the defendant. The plaintiff appealed to the Circuit Court, and judgment was there, also, given for the defendant.

The plaintiff makes two objections to the judgment. The first is, that a motion by the plaintiff to suppress the deposition of Aydelott, taken by the defendant, was improperly overruled. The second is, that the evidence did not support the judgment.

The plaintiff contends, that the deposition of the execution-defendant should have been suppressed, on the ground of his being interested. We think, however, that the witness was competent. This being an action of debt against the officer for an escape on execution, the plaintiff, if he succeed, will recover his whole debt, and can have no recourse after-wards against the execution-defendant. Bonafous v. Walker, 2 T. R. 126. It follows, that the execution-debtor can have no interest in defeating the suit.

The second objection to the judgment is unfounded. Taking the deposition objected to into consideration, as we must do, the evidence in the record is clearly in favour of the defendant.

Per Curiam.

— The. judgment is affirmed with costs.  