Barber v. Wolcott , 15 Pa. 57 ( 1850 )

Per curiam.

This was a curious, but ungracious defence. Barber, the defendant, became bound to indemnify Wolcott, the plaintiff, as a constable, for selling, on an execution in favour of Barber, property which was severally claimed by Cleavland and Jenks—who, after the sale, brought actions of trespass against Wolcott, and recovered. Those actions were arbitrated, and the day of hearing was so fixed by Barber, who chose the arbitrators, as to fall on Sunday. Wolcott subsequently agreed to a further day ; and this is charged by Barber as a collusive injury, in depriving him of his fancied advantage in having fixed the hearing on an impossible day. But the constable had a right to manage his own-defence; the consequence being that the judgment against him would be only prima facie evidence against the surety, instead of being conclusive, as was said in Leather v. Poultney, 4 Binney 352. If, in thus managing it, he deprived Barber of an unfair advantage, the latter has no cause to complain. He was deprived of the expected fruit of a trick, and he may not set up his own knavery as defence. ■

Judgment affirmed.