The opinion of the Court was pronounced' by
Paddock, J.This action was brought into this Court by an appeal from the decision of the County Court, upon a demurrer to two pleas in bar, pleaded by the defendant, The plaintiff has set forth in his declaration, that on the 30th" day of January, 1823, he recovered a judgement against the defendant, for $18,04 damages, and $2,30 costs, upon which a writ of execution issued, and was put into the hands of Henry Noble, a Deputy Sheriff, who, on the 12th day of March, 1821, levied the same on a pair of steers, supposing them to be the property of Nichols, but afterwards proved to be the property of one Jonathan Snyder ; and that Snyder afterwards commenced his action against Mack & JSrulle, and recovered of them the value of them, which Mack afterwards, paid ; concluding with a prayer that the said Nichols may be required to show cause why an execution should not issue against him for the amount of the first judgment.
To this prayer, the defendant interposes two pleas in bar; first, acknowledging the recovery of the judgement, *203the levy of the execution upon the steers and subsequent recovery for them by Jonathan Snyder against Mack & Noble; yet that the said Mack afterwards sued the said Snyder, and recovered back the same sum, to wit, '$98,20, which the said Snyder had before that time recovered of Mack & Noble, and had collected the same, and that he still retains the $15 for which the steers were sold. In the second plea in bar, the defendant details the facts more particularly which transpired between Mack & Snyder, and says that on the 14th day of August, 1827, Mack prayed •out his writ against Snyder, returnable before Justice B., on the 24th of August, 1S27, at 9 o’clock, A. M., counting upon a promise made by Snyder in 1823, (and during the pending of Snyder’s suit against Mack & Noble for the value of the cattle in Chittenden County Court) that in consideration Mack would agree to discontinue said suit and claim no costs, Snyder would release him from all claim for taking the steers, and that in pursuance of the agreement, the suit was discontinued; nevertheless, Snyder afterwards sued Mack & Noble again, and recovered for the steers, which writ was served on Snyder ,by Hiram Sanford, who informed Snyder that the hour set for trial was 1 o’clock, P. M., instead of 9 A. M.; by means of which, Snyder was defaulted, and judgement rendered against him for $98,20 damage, and $1,63 costs, and had paid off the same, being the amount of debt and costs which Snyder before that time had collected of Mack &, Noble. There being a general demurrer to these pleas, the question is presented whether they form a sufficient bar. It appears that in the second suit brought by Snyder against Mack & Noble, the steers were adjudged to be the property of Snyder, and he recovered judgement for them, which was paid off by Mack, and this judgement has never been reversed. It then remains established, that the steers were the property of Snyder, and not of Nichols.— If so, it follows that Mack in justice ought to retain the $15, as against this defendant, having had to pay it over with the addition of costs to Snyder for seising and selling the steers, which brought the sum into his possession. As to the subsequent suit which Mack brought against Snyder upon his promise to discontinue the first suit against him, in the County Court, and relinquish his claim for the *204steers', the Court do not see that this defendant had any ip-terest in it, or that the relation of debtor and creditor, that then subsisted between this plaintiff and defendant could be altered or changed by the event of that suit, any more than it would, had the subject matter of it been foreign to that controversy. Therefore', the plaintiff has a right to sustain this scire facias, and nothing set forth in the pleas ought to bar him; and the judgement of the County Court is affirmed.
Ch. Adams, for plaintiff; Briggs, for defendant.