By the Court,
Nelson, J.The admissions of M’Gregory and Shearer, as proved on the trial, were clearly competent evidence as part of the res gesta constituting one of the principal points litigated between the parties. The property taken and sold upon the execution against M’Gregory and Adams was not found in the possession of either of them, but of the Shearers; and it became necessary, therefore, for the defendants to prove title to the property in themselves, or in one of them. To show property in M’Gregory, a sale, under the Troy Bank execution, at which M’Gregory was the purchaser, was attempted, and must be sustained or the defendants must fail. What was necessary to be proved by one party might be disproved by the other. M’Gregory and John L. Shearer were the principal actors in the transaction relative to the Troy Bank execution, as is abundantly proved by Lewis Shearer. Their acts, and of course their declarations at the time while engaged in bringing about the sale and accomplishing the avowed object of it, were undeniably competent and pertinent. It is conceded their acts were so, and that their declarations, to the extent claimed and proved, were admissible, stands upon as clear and well settled a principle of evidence. They were a constituent part of, and gave character to the transaction or sale. 1 Phil. Ev. 202. 1 Starkie, 39, 47.
If the testimony of John L. Shearer on the former trial had been used by the plaintiff and the objection to its competency on the score of the interest of the witness had been made by the defendants, now for the first time there would be some plausibility, if not force, in the argument, that had it been made before, the witness might have been released ; now it is too late. Even under this view of the question, I will not say it would be decisive; for the evidence of the former testimony is admitted only from necessity, and is justly liable to many exceptions; and it seems even still to be questioned by high *45authority if it be admissible at all in a criminal cause, 2 Hawk. 606, § 12, Peake’s Ev. 60, though 1 think it would. Eminent judges have cast a doubt over the soundness of the rule, and Lord Kenyon confined its operation to an almost impracticable strictness, evidently from the danger of its great facility to abuse. 1 Phil. Ev. 199, 200, Gould’s ed. 2 Johns. Rep. 21, per Livingston, J. 14 Mass. R. 234. 6 Cowen, 162. It will not be allowed, unless the witness be dead and his death affirmatively shown. Even diligent inquiry, without being able to find the witness, is not sufficient, though it is obvious there can scarcely be a shade of difference between the two cases, (death and absence,) either in principle or hardship. I mention these circumstances to show the great strictness with which the rule is guarded by the courts. But the argument against permitting proof of the interest of the witness, where the same party who introduced him on the former trial offers his testimony, after his decease, in the same cause, does not apply to this case. This is the first time the plaintiff has sought to use the testimony of this witness; and I am unable to discover any reason why his adversaries shall not be permitted to take every legal exception to it that they might have taken had he been living and before the court. It cannot be said that the plaintiff would have wnpreMaa him on the former trial, if the defendants had not; and then, if objected to, he could have been released; for we cannot now take his assertion, when it is his interest to make it, and we are not at liberty, in the absence of proof, to presume that the plaintiff would have called the witness ; and more especially, we cannot presume that he would have submitted to the sacrifice of making him a competent witness by release. The case assumes that he was interested in the event of the suit.
The admission of the testimony at the circuit was put on the ground that the defendants, by introducing the witness on the former trial, had declared his competency and credibility, and thereby precluded themselves from questioning either. This was undoubtedly true, so far as that trial was concerned, 1 Phil, Ev. 213, but no farther. Independently of that trial, Shearer was not the witness of the defendants, unless they again chose to make him such. Had he been living and *46been introduced by the plaintiff on the second trial, it could not for a moment be contended that the defendants were not at liberty to take any exceptions to his testimony; and yet the argument would seem to be pushed to this extent. I am aware a distinction is taken between a living witness and the testimony of one deceased; but I have already endeavored to give the answer to it in this particular case. The position of a cause at the circuit sometimes makes it expedient, in a choice of evils for a party, to risque the testimony of a witness interested against him, and as to that trial he must abide the consequences; but if the experiment has proved that the choice was an unwise one, it would be a hard measure of justice to say the witness should ever after be not only a competent but a credible witness in the cause for his adversary, whether dead or alive. The decease of Shearer may be a misfortune to the plaintiff, but that is no reason for throwing that misfortune on the defendants; nor is the fact that the plaintiff has once had the benefit of the testimony of an interested witness, a reason why it should be repeated. There is no force in the position that a party who has used a witness interested against him should afterwards, on a second trial, be estopped from excepting to him on the ground that he is practicing a fraud upon the court. The rule of evidence here alluded to has no application to the case. 1 Phil. Ev. 213. It would be somewhat difficult to make fraud out of the act of a party in calling a witness, on a trial, interested against him.
The judge erred in admitting the testimony of J. L. Shearer ; but, notwithstanding, I am of opinion there ought not to be a new trial, and that the jury were bound to render their verdict for the plaintiff independently of that testimony, on the ground that the first sale was fraudulent and void. The evidence of Lewis Shearer, Noble and Maxwell, proved every fact contained in the statement of John L. Shearer, and much more fully and explicitly than was testified to by him, according to the account given of his testimony. The manner of selling the property, and the circumstances under which it was sold by the deputy sheriff, were highly exceptionable; and if supported, would result in an enormous sacrifice. Pro*47perty, to the amount of near $800, was sold for $118 — a strong circumstance that all was not fair, especially when there is no satisfactory evidence that the plaintiffs in the execution were pressing, and the plaintiff in this cause, besides, had passed his word that it should be paid.
Laying entirely out of view the testimony of J ohn L. Shearer, it is impossible, upon the whole case, to doubt that here was a deliberate and fraudulent combination between the parties to the first sale to defraud the plaintiff in this cause; and it would be discreditable to the administration of justice, to give countenance to such a perversion of the judgment and process of the court.
The defendants are not entitled to any peculiar protection or favor, as they cannot be deemed bona fide purchasers. They were fully advised of the claims of the plaintiff, and were obliged to indemnify the sheriff before he would hazard a sale. Under the circumstances of the case, in contemplation of law, they stand in no better situation than M’Gregory, being chargeable with notice of his fraud, and having chosen to take the risque of it.
The following are authorities for denying a new trial, notwithstanding the error of the judge. To induce the granting of a new trial, there should be strong probable grounds to believe that the merits have not been fully and fairly tried, and that injustice has been done. 3 Johns. R. 532, 3. 2 Caines’ R. 90. 5 Johns. Rep. 138. 8 Wendell, 673. 2 T. R. 4. 1 Bos. & Pul. 339. 1 Taunton, 12. No such grounds exist in this case.
New trial denied.