The opiuion of the Court was read at the ensuing November term in Cumberland, as drawn up by
Weston J.By the terms of the contract, the defendants were to re-deliver to the plaintiff the property entrusted to them, within thirty days after the rendition of judgment. One of the defendants was a party to that judgment, and must therefore have had notice of the time when it was rendered ; and notice to one of the defendants of this fact, would establish their liability, if there were no other objection.
But the principal question submitted to the court is, whether the plaintiff has sustained any real damage, on account of the failure of the defendants to fulfd their contract. And this depends upon his liability to the attaching creditor ; and he is liable to him, if the property attached was demanded of him within thirty days after judgment. Tills fact is proved, if the present sheriff was a competent witness at the trial. He was objected to on the ground of interest. The attaching creditor has a remedy upon the former sheriff, upon the plaintiff, his deputy, or upon the present sheriff; and it is insisted that the latter is interested to sustain this action, that he may relieve himself from liability. If this were an action by the creditor against the former sheriff, or against the plaintiff, the witness would be interested; for the creditor after realizing the amount of his judgment from either, could have no further claim. But lot this cause terminate as it may, the creditor is at full liberty to bring his action against the witness ; and he could derive no protection whatever from this judgment; nor could he avail himself of any fact established by it in his defence. He has nothing to gain by a judgment direct-*132]y in favor of the plaintiff. If thereupon the plaintiff pays and satisfies the -creditor, it yvill enure to the benefit of the witness ; but this is a consequence which may or may not follow from this judgment. If the creditor should choose to call upon the witness, he will still be bound to show that he has discharged his duty in relation to the execution. It does not appear to us therefore that he. has any direct interest rendering him incompetent.
The court being of opinion that the testimony was competent and the action maintainable, the default is to stand, and judgment to be rendered thereon.