Opinion · Nclaw North Carolina

MCKELLAR v. BOWELL, 11 N.C. 34 (1825)

11 N.C. 34

Type: Opinion
Court: Nclaw North Carolina
Jurisdiction: Nclaw
Date: 1825-01-01
Topic: general

MCKELLAR v. BOWELL, 11 N.C. 34 (1825) McKELLAR AND THE OTHER JUSTICES OF CUMBERLAND, TO THE USE OF ARCHIBALDSMITH, JOHN SMITH, AND DAVID SMITH, v. BOWELL AND CAMPBELL.Supreme Court of North Carolina December Term, 1825. The record of a recovery against a guardian is not evidence against his securities, in an action brought by the plaintiff in that recovery against the securities, to subject them upon the guardian bond for the default of their principal. DEBT brought in CUMBERLAND against the defendants as securities to a guardian bond, given by one Archibald Smith as guardian to those for whose benefit this suit was instituted.

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MCKELLARv. BOWELL,11 N.C. 34(1825)

McKELLAR AND THE OTHER JUSTICES OF CUMBERLAND, TO THE USE OF ARCHIBALD

SMITH, JOHN SMITH, AND DAVID SMITH, v. BOWELL AND CAMPBELL.

Supreme Court of North Carolina

December Term, 1825.

The record of a recovery against aguardianis not evidence against hissecurities, in an action brought by the plaintiff in that recovery against the securities, to subject them upon the guardian bond for the default of their principal.

DEBT brought in CUMBERLAND against the defendants as securities to a guardian bond, given by one Archibald Smith as guardian to those for whose benefit this suit was instituted. Archibald Smith died and John Smith administered on his estate, and the guardianship was committed to another guardian, who filed a petition against the administrator of Archibald Smith, setting forth these facts and charging that the (35) administrator of Archibald Smith had in his possession the property of the wards. This petition was answered by the administrator, an account taken by order of the court, and a decree made againstPage 15the administratorde bonis intestati, on which execution issued, which was returned indorsed "No goods or chattels of Archibald Smith, deceased, to be found in the hands of John Smith, his administrator"; and now in this action on the bond against the securities, the plaintiff offered the record of the proceedings in the case of the petition asprima facieevidence to charge these defendants with the amount of the same; but the court refused it, on the ground that the present defendants were not parties to that suit. The plaintiffs were nonsuited, and the case stood before this Court, by appeal of the plaintiffs, on a motion to set aside the nonsuit and have a new trial because of the improper rejection of evidence.

Ruffin for appellant. (37)Gaston for appellee.

TAYLOR, C.J.

This is an action against the securities to a guardian bond in which the question arises, whether the record of a judgment recovered against the guardian, in a suit brought against him alone, in behalf of the present plaintiff, is competent evidence against the defendants.

The general rule laid down by all the writers on the law of evidence is that it would be unjust to bind a third person by a judicial proceeding between two, in which he could not be admitted to make a defense or to examine witnesses or to appeal from a judgment which he might think erroneous. A verdict or judgment, however, in a former action, upon the same matter directly in question, is also evidence for and against privies in blood, privies in estate, or privies in law, because their rights are derived under the person against whom the judgment is recovered, and must consequently be bound as his were.

Every reason assigned for the exclusion of such evidence applies with full force to this case; for there defendants had no opportunity of making a defense in the former action, of examining witnesses, or of appealing from the judgment; nor is there such a privity subsisting between them and the guardian as to form an exception to the rule. 1 State Trials, 219; Runn. Eject., 364.

The defendants entered into a joint and several bond, conditioned for the faithful performance of the guardian's duty; but they have made no agreement, by the nature of their contracts, to be (38) concluded by a judgment against their principal; they ought, of course, to be bound only upon the assignment and proof of a breach of the condition, in a suit against themselves.

If A. binds himself to pay for goods sold and delivered to B., the admission of B. as to the amount of the goods sold and delivered to him is not admissible evidence in a suit against A. 5 Espin. 26.Page 16

Nor, upon the same principle, could a judgment against B., founded upon his admission of the debt, be evidence against A. So if A. and B. be bound in a recognizance that B. shall keep the peace, in anotherscire faciasagainst A. he shall not be estopped by the first trial. 10 Vin., 464.

Another rule of evidence intimately connected with the foregoing is that no record can be given in evidence but such whereof the benefit may be mutual, that is, such as might be given in evidence either by the plaintiff or defendant; or, according toBaron Gilbert, that nobody can take benefit by a verdict who had not been prejudiced by it, had it gone contrary. The reason why it would not be evidenceagainstthe party has been already shown; and it could not be relied on by a stranger to the former suit, even against the party to it, because if the person offering it had been a party instead of the person gaining the verdict, different evidence might have led to a different result; or it might have been gained by such evidence as would have been inadmissible if offered against himself. So that to admit a verdict as evidence under such circumstances would be giving the party the benefit of evidence which he could not avail himself of in his own suit. But this reason seems to apply only where the verdict is offered in evidence by a third person against the party who failed in the former action, and not where it is produced against the party who succeeded. 1 Phil., 233. It goes, (39) however, to show that if the guardian had succeeded in the suit brought against him by the plaintiff, the judgment could not be offered by these defendants to repel the action; and, therefore, as the judgment was rendered against the guardian, it shall not be evidence against this defendant.

The cases relied upon to show that a judgment against one person is admissible evidence against another, not a party to the suit, are all, either within the literal terms of the exception or within its spirit, relative to privies.

The cases wherein the warrantee or covenantee of lands or chattels has been allowed to give in evidence, against the warrantor, or covenantor, the judgment of eviction, or recovery against himself, have proceeded on the ground of privity of contract; and most of them have been accompanied with notice of the suit, and either the warrantor did defend it, or might have done so, and employed the name of the defendant. Some of them have been decided on the principle that there was a covenant against eviction, which, therefore, as a fact, the party was at liberty to prove by the judgment, but he must still allege that the eviction was by a lawful title. In these cases the covenantor was in fact, if not nominally, a party to the first suit, and might properly have been affected by the judgment.Page 17

InRennerly v. Onpie, cited from 2 Douglas, 517, there was verdict for the plaintiff in an action of trespass, committed in the plaintiff's fishery, against one who justified as servant, and this was received atnisi priusas conclusive evidence against another defendant in a subsequent action for a penalty incurred by destroying fish in the same fishery. On a motion for a new trial, it was held to be onlyadmissibleevidence; but in a recent case it is justly doubted whether the record of the first suit was at all admissible in evidence, upon the subsequent action against the defendant, who was not a party to the former action. 2 East, 366. It is true that by our act of 1784 a judgment (40) recovered against an executor by a creditor who seeks satisfaction out of the real estate is made evidence against the heir, who is allowed at the same time to prove, if he can, that the executor has not fully administered. But this very provision shows that, in the opinion of the Legislature, it was not admissible evidence upon common-law principles.Ripv. Brighamwas cited from 6 Johns., 158. That was a contract for indemnity, and all these contracts stand upon peculiar grounds; "for if a demand be made, which the person indemnifying is bound to pay, and notice be given to him, and he refuse to defend the action, in consequence of which the person to be indemnified is obliged to pay the demand, that is equivalent to a judgment, and estops the other party from saying that the defendant in the first action was not bound to pay the money." PerBuller, J., in 3 Term, 374.

And the case in 6 Johns. was decided in conformity to this rule; for there the sheriff had taken a bond with sureties for the liberties of the jail, granted to a prisoner in execution, and a judgment was recovered against the sheriff for an escape, and it was held that the sheriff might, in an action against the sureties, give the recovery in the former suit in evidence, and that it was conclusive, and prevented the defendants from controverting the fact of the escape. But a very important fact in that case was that regular notice of the first suit was given to the defendants, who assumed upon themselves the defense of the suit and became essentially parties.

A case was cited from 1 Ld. Ryan, 190, in which the declaration of an under-sheriff was received as evidence against his principal; but the rule laid down in that case has been restricted by later cases to declarations constituting a part of theres gestae. 1 Campb., 391; Peake, 65; Phil., 76.

It is remarkable in the case cited from 6 Johns. the Court lay down the broad position that the case of principal and sureties does not come within the rule ofres inter alios acta, for which Pothier is cited. But upon recurring to the work of that perspicuous writer it will (41)Page 18appear that although this position is correct in the civil law, it is so upon reasons and principles which have no existence in our law, and the total absence of which amounts to absolute demonstration that the case of principal and sureties is within the rule ofres inter alios acta, according to the law we are now engaged in administering.

It was a rule of the civil law that the obligation of the surety being dependent upon that of the principal debtor, the surety is regarded as the same party with the principal with respect to whatever is decided for or against him. Therefore, if the demand against the principal has been dismissed, the surety may, in case he is afterwards proceeded against, oppose the exceptionsic judicatato the creditor. The creditor cannot in this case reply that it isres inter alios judicata;for as it is the office of a surety that his obligation depends on that of his principal, that the surety cannot owe more than the principal, and that he may oppose all the exceptionsin remwhich could be opposed by the principal, it follows that whatever has been decided in favor of the principal must be taken to be decided in favor of the surety, who ought in this respect to be considered the same party. And, on the other hand, if the judgment was against the principal, the creditor may oppose it to the surety and demand that it may be carried into execution against him.

This is the rule of the civil law, which, taken nakedly and without an investigation of the reasons on which it is founded, would clearly show not only the admissibility of this judgment against the sureties, but also its conclusiveness. But the same writer proceeds to explain the reason of this rule, which is, "that the surety is allowed to appeal against the judgment, or to form an opposition to it, if it is in the last resort." Pothier on Obligations, Part 4, ch. 3, Art. 5, sec. 63. No (42) comment is necessary to show that it is precisely because these reasons have no existence in our law that the case of principal and surety does not form an exception to the rule ofres inter alios judicata. It is governed by the rule, and the judgment should be affirmed.

HALL, J. It is a maxim in law, founded on the immutable principles of justice, that a person shall not be deprived of his property or divested of his rights without being heard in his defense. Privies are bound by judgments against their principals; but there is no departure from the rule in those cases, because their principals under whom they claim were parties to such judgments. The present defendants are not privies to the defendant against whom the decree was made which is now sought to be given in evidence. They bound themselves as his securities that he, as guardian, should deliver over all the estate to the person who was entitled to receive it; but not to pay the amount of any decree that might bePage 19made against him. The decree is not proof of an acknowledgment by the defendant to do it, of money or property in his possession to that amount, because it was madein invitum. It was made upon evidence offered by the petitioner with which these defendants were not confronted and which they had not the opportunity (and if they had, they had not the right) of opposing or explaining by other evidence. The guardian and securities are not identified by similar obligations in the bond, but the securities bear an exact resemblance to each other, and it would not be pretended that a judgment obtained against one security would be evidence in a second action against another security. I, therefore, think the judge properly rejected the decree in this case as evidence, and that the rule obtained for a new trial should be discharged.

HENDERSON, J., concurred.

Affirmed.Cited: Chairman v. Clark, post, 43;Armistead v. Harramond, post, 341;Governor v. Twitty,12 N.C. 156;Vanhook v. Barnett,15 N.C. 271;Governor v. Montford,23 N.C. 158;Governor v. Carter,25 N.C. 341;Brown v. Pike,74 N.C. 534;Lewis v. Fort,75 N.C. 252;Walters v.Moore,90 N.C. 45;Moore v. Alexander,96 N.C. 36.

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