
    John P. Bond ads. Shadrach Ward
    Where a recovery over is given by law, or secured by express contract, and the plaintiff relies upon the recovery against him as the sole and conclusive testimony of his right to recover over, notice of th & first action is indispensably necessary.
    A. gave B. (a constable) an indemnity bond to levy and sell the mare of C., which B. did. C. recovered the value of the mare of B. B. sued A. on his bond, without having given A. notice of C.’s action against him. Held, he could not recover, not having given such notice.
    Tried before Mr., Justice Bay, at Granby, 18 — .
    The plaintiff, who was a constable, had levied a magistrate’s execution on a mare, as the property of Nathan Joiner, at the suit of the defendant. But the mare was claimed by Martin Witt, and the plaintiff refused to sell unless the defendant would indemnify him: the defendant did so, and the plaintiff sold the mare. Witt brought his action against the plaintiff, and recovered the value of the mare, and the plaintiff brought his action on the contract of indemnity. On the trial of this case, the plaintiff gave in evidence the judgment obtained by Witt against him, but offered no other evidence of notice to the defendant of that action, than that it had been once continued on the mere suggestion of the attorney who defended it, that the presence of the defendant in this case was necessary, and that he was unable to attend on account of the indisposition of his family. On this evidence the presiding judge decreed for the plaintiff. And a motion, was now made on the part of the defendant to reverse that decree, *and for leave to enter up the judgment for defendant, on the ground,—
    That notice to the defendant was indispensably necessary, and that the evidence offered to prove that fact was illegal and insufficient.
    
      Stark, Solicitor, for the motion. Crenshaw, contra.
   The opinion of the Court was delivered by

Johnson, J.

It is unnecessary, to the determination of this ease, to enter into the consideration of the general question, whether notice is, or is not necessary, where a recovery over is given by law, or secured by express contract. It is sufficient, and so I take the rule to be, that wherever a plaintiff relies upon the recovery against him, as the sole and conclusive evidence of his right to recover over, notice is indispensably necessary. In this, case, there was no other evidence of the plaintiff’s right to recover. And it only remains to be inquired, whether there was any evidence of notice.

In the summary jurisdiction of the Court, it is the province of the presiding judge, as it is of the jury in trials before them, to weigh the evidence, and where there is any legal evidence of the fact is dispute, this Court will rarely interfere. But where there is no evidence, or where a decree is predicated on inadmissible evidence, this Court, as in trials by jury, will control it. The evidence of notice, in this case, appears to be objectionable, on two grounds:

1. Because it was the declaration of a third person, (the attorney who defended the case of Witt against the plaintiff,) and even admitting that it went to show notice, it was hearsay evidence, and therefore inadmissible.

2. Because it is impossible even to infer notice from this evidence. The declaration of the attorney was not that he had had notice, but that his presence was necessary at the trial.

I am, however, of opinion, that the motion for leave to enter up judgment for the defendant, ought not to prevail; but that a new trial ought to be granted, to *give the plaintiff another opportunity of proving his case, if it has merits.

Grimke, Colcook, Nott and Cheves JJ., concurred.

Gantt, J.,

gave no opinion, having been employed in the former suit. 
      
       MS. Roberts v. Barns, 2 Rice Dig. 117, § 56, 228, § 268.
      Sp. 69, 72, 80; 1 Hill, 28; Samuel v. Dinkins, 11 Rich.
     