
    Kip, Sheriff, &c. against Babcock and others.
    NEW-YORK,
    Nov. 1810.
    See Ballou v. Kip,ante, same points.
    THIS was an action brought by the plaintiff against ... the defendants, on a bond given as security for the liberties of the gaol, granted to’ Babcock, who' was in custody on execution, at the suit of Ballou, the plaintiff in the preceding suit. The cause was tried at the Oneida circuit, the 11th June, 1810, before IVTr. Justice Spencer. The plaintiff offered in evidence, the nisi prius record and postea in the cause of Ballou v. Kip, in which a verdict was found against the sheriff for the escape; this evidence was objected to by the defendants, but the judge ruled that the evidence was admissible and conclusive against the defendants in this suit, unless they could show fraud or collusion between the parties iq the former suit. The present defendants had notice pf that suit, and aided in the defence.
    The same evidence was then given, as to the escape, &c. as was given in the last cause; and the jury, under the direction of the judge, found a verdict for the plaintiff.
    .A motion was made to set aside the verdict and for a hew trial; which was submitted to the court, without argument.
   Per Curiam.

The award of a new trial in the preceding cause necessarily controls this case, for if the plaintiff be not liable for the escape, the defendants are not liable even to him upon their bond of indemnity. There was no more evidence, except the verdict itself, to establish the escape in this cause, than there was in the other, The verdict must, therefore, be set aside, •snd a new trial awarded, with costs to abide the event.

New trial granted.  