The action was to recover the value of goods, contained in stores leased to Wellington A. Carter, and mortgaged in part to his wife
As to a portion of the property seized and sold, a preceding action was brought by the same person, who is plaintiff in the present action, and tried in the second district. Upon that trial a verdict was recovered by the defendants in the suit, who were the parties to a bond given to the sheriff to indemnify him for the seizure and sale of the property under the execution. As to such property, the court held the judgment to be a bar to this action against the sheriff and his deputies. And to that extent the ruling appears to have been correct, for a recovery in this action for the same property against the sheriff, if that could have been had, would have entitled him to maintain an action for indemnity upon the bond against the defendants in that suit, and in that manner deprive them of the effect of the judgment which had been recovered in their favor for the same taking. And to avoid that result the sheriff was entitled to rely upon the judgment for his protection, which had been recovered in favor of these bondsmen.
But as to the residue of the property seized and sold after the seizure complained of in the preceding action, the judg-' ment was not operative, but the controversy was open to evidence upon the point whether the property seized was liable to be taken and sold to satisfy executions issued against the mortgagor. The right of the sheriff to seize the property under the execution depended upon the question whether the mortgages were made in good faith and without any intent to hinder, delay, or defraud the
This has been the course of proceeding for many years, not only unquestioned, but sanctioned by the courts, and the answer in this action must accordingly be held to have been sufficient.
In submitting the case to the jury the legal points upon which it depended were clearly stated to them by the court, but rulings were - made upon evidence excluded and received, which do not appear to be capable of being sustained. Among these was the ruling sustaining the objection that the witness, Wellington A. Carter, could not look upon a memorandum produced upon the trial to refresh his memory, so that he could state the articles which had been left in one of the stores by Mr. Aymar, who was one of the plaintiff’s assignors. Liberty was refused the witness to answer this question, on the ground that the memorandum had not been identified. But that objection was not well taken, for whatever the memorandum may have been, if it would refresh the recollection of the witness so that he could state the articles which were left, the plaintiff had the right to have that memorandum consulted by him, and to the testimony he might be able to give after referring to it. The object of the inspection or examination of the memorandum was to revive the memory of the witness, and whatever it may have been, if it would have been attended with that effect, and the plaintiff was entitled to an opportunity to prove that it would, the witness had the right to look at it. (Doe ex dem. Church v. Perkins, 3 Durn. & East., 749; Bigelow v. Hall, 91 N. Y., 145 ; Marcly v. Shults, 29 id., 346.)
The plaintiff’s ease was also illegally prejudiced by answers allowed to be given concerning other property and premises previously occupied by him. As to one of those places the witness was allowed to answer the question whether he was a prompt rent payer. The statements or representations of the mortgagor concerning the fact that he represented Josephine F. Classon, and in that capacity promised to take care of a mortgage upon certain real estate not connected with the action, and other transactions, were drawn in by way of evidence having no relevancy whatever to the action, or the credit of the witness. The object of this evidence seems to have been to create a prejudice in the minds of the jury against the mortgagor, inducing them in that manner to reject the plaintiff’s claim far indemnity for the property seized and sold as his under the executions. This course was not justifiable. The object of the law is to secure the administration of justice between contesting claimants, upon the evidence given to develop the facts logically and legally bearing upon that disposition. It is not its purpose, by means of irrelevant and foreign matters, to permit one party to defeat another, either by holding him up to ridicule before the jury, or biasing their judgment by entirely foreign and extraneous matters. In these respects the plaintiff has a legal ground for complaint concerning the manner in which her action was tried at the circuit. And on that ground, as well as the exclusion of pertinent evidence offered to be given in her behalf, and the admission of illegal evidence against her, the judgment should be reversed and a new trial ordered, with costs to abide the event. And as that will dispose of the order making the
Judgment reversed, new trial ordered, costs to abide event.