The opinion of the court was delivered by
Hebard, J.This action is case against the sheriff, for the neglect of his deputy, in neglecting and refusing to attach certain prop*400erty on a writ in faVor of the plaintiffs against John H. Leland, The defence is, that the property was not liable to be attached as the property of John H. Leland. The legality of that defence has been established by repeated decisions; and the principal question, now, is in relation to the admissibility of the sayings of Aaron P. Leland and John H. Leland.
We think that these declarations Were inadmissible, in the first place, because they were entirely immaterial. They did not tend to prove a different state of facts from those insisted upon by the defendant. It was claimed by him that there was a conditional sale of this property by Aaron P. Leland to John H. Leland; and these sayings were not inconsistent with that fact. In the next place, they were the sayings of persons who were disinterested, and who might, therefore, be witnesses; — and that being so, their testimony, under oath, would the be better evidence. These sayings were no part of the res gesteo. It is not with the possession of personal property, as with real estate.
The case goes upon the ground, that John H. Leland had never any attachable interest in the property, and therefore his possession was of no importance.
Judgment affirmed.