— This notice is wholly insufficient; such notice ougbt to make out a good defence; the same, in substance, as a plea in baiv It is not necessary to enter at large into the nature of the defence in this action. But, it is clearly necessary, that the notice should contain an averment of a prior right to the property in Catlin, and that the recovery was had on such right. And ¿even then, unless Peaslee, the intestate had had notice of the suit in favor of Catlin against Staniford, and an opportunity to defend, he could not be concluded by a recovery in favor of Catlin against the Sheriff.

Keyes and Harrington for the defendant. — Then stated that the brick were by Peaslee the intestate, turned out to the Sheriff, as the property of Stephen Moore, the debtor in the execution, and that' they were sold on the execution,by the express directions of Peaslee. That immediately after the sale, they were claiméd by Catlin, and-that Catlin was in fact the owner of the brick. That Catlin commenced an action against Staniford, as before stated, and recovered the value of the brick. — That Staniford gave notice to Peaslee, the creditor in the execution, of the commencement of the suit, but he paid no attention to the defence of the action; and offered evidence' of these facts under the general issue.

The Court doubted, but finally permitted the defendant to go into the evidence.

A record of the Judgment in favor of Catlin against Staniford, was then prodaced by the defendant.

Van Ness, objected to the reading of the record, in evidence.

Zacheus Peaslee, the intestate, was neither party nor privy-to the record; it cannot, therefore, be evidence against him or his representative.

By the Court. — As the defendant has been permitted to go into this defence, it is a matter of course to admit the record, the same as though this were an action for indemnity.

The record was then read to the jury.

Moses Catlin, called as a witness by the defendant, testified, that the brick were his property at the time the execution was levied upon them — That the Sheriff took a few of them on the execution, *173that the question respecting his right to the brick might be tried. That the action was commenced by agreement between him and Stamford, Peaslee was not consulted. — That he, the witness took the remainder of the brick. — That he had a bill of sale of.the brick from.Moore, before the brick were made, to secure him for advances which he was to make to Moore, and did make in carrying on the business.

Van Ness, for the plaintiff, objected to any evidence relative to the bill of sale, or the purchase of the brick by Catlin, until the bill ,of sale should be produced.

By the Court. — As there appears to be a bill of sale in writing, no parol evidence can be admitted to show a transfer of the brick from Moore to Catlin. It is the common case, where there is written evidence, it must be produced, unless the non production of it be legally excused. It is the more necessary in this case, as there ■ is some appearance of collusion. The bill of sale not being produced, the jury were directed to find for the plaintiff the amount of his debt collected on the execution, with interest on the same, at the rate of 15 per cent per annum, agreeably to the statute. The jury accordingly returned a *

Verdict for the plaintiff.

NOTE BY THE CHIEF JUSTICE.

Quaere — As to the propriety of admitting the defence which ivas attempted in this action,' as an excuse or justification for not paying over the money collected. It may, where the property has been turned out by the creditor, to the Sheriff, save a circuity of action. But it serves to render the trial very complicated ? and may open a door to much collusion.