Dixon v. Waters, Bailiff of Van Ness

Dixon v. Waters, Bailiff of Van Ness. If the defendant in replevin be the bailiff of the landlord, and is indemnified by Mm, he may be examined as a witness in the canse. Queers. Replevin ; avowry for rent arrear. Mr. Ashton, for the defendant, moved the Court to substitute Mr. Van Ness for the defendant Waters, the latter being only the bailiff of the former in a distress for rent. The Court refused, (nem. con.) but on the trial, being pressed by the case of Wise v. Bowen, decided at April term, 1821, [ante, 239,] the Court (Morsell, J., contrd,) permitted the defendant, Waters, to testify as a witness, not perceiving any material difference in principle between this case and that of Wise v. Bowen, on that point. In that ease the defendant, Bowen, a constable, had taken the property in execution. The plaintiff claimed the property and replevied it. The. officer, upon receiving indemnity from the plaintiff in the execution, was permitted by the Court to testify for himself, (Cranch, C. J., doubting.) [MAJORITY — Moksell, J., Cranch, C. J.,] Moksell, J., said that he had concurred in the opinion of the Court in the case of Wise v. Bowen, because the officer was obliged, after receiving the indemnity, to take the goods in execution, and was merely a formal party to the suit, which differs in that case from this, where the defendant is a voluntary bailiff, and not bound by official duty to make the distress. Cranch, C. J., said that he should probably have been of the same opinion with MoRSell, J., if he had known that he did not concur with Thruston, J., in the present case ; as he had doubted of the propriety of the opinion in the case of Wise v. Bowen; and thought the point ought to be reconsidered. Verdict for the plaintiff. —