Cumberland County NcArchives Court.....M'Kellar, V. Bowell & Campbell 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 1:40 pm

Source: Nc Reports, Vol 11, 1897
Written: 1825

December Term, 1825

M'KELLAR, and the other Justices of Cumberland, to the use of Archibald Smith, 
John Smith and David Smith, v. BOWELL AND CAMPBELL.

From Cumberland.

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.

This was an action of debt brought 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 administrator of Archi-(35)
bald Smith had in his possession the property of the wards: this petition was 
answered by the administrator, an account taken by order of Court, and a 
decree made against the administrator de bonis intestati, on which execution 
issued which was returned endorsed "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, as prima facie evidence 
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 the appellant. — The question is, whether the decree against the 
administrator of a deceased guardian is evidence against the sureties of the 
guardian, in an action upon the guaidian bond. The record was rejected in 
toto; if it was evidence of any thing, therefore, the nonsuit must be set 
aside. Now these proceedings were evidence of a demand for settlement, and 
that there was no settlement; and if no settlement, there was a breach of the 
condition of the bond.

It may be said that this was res inter alios actu; the rule that excludes such 
evidence, however, is not universal; for instance, the conviction of a 
principal is prima facie evidence against the accessary; so one surety may 
bring his action against his cosurety, and the judgment against him is 
evidence, not of his suretyship, but of the amount recovered. Foster v. 
Compton (2 Starkie's Rep. 321). The rule is, that the surety is bound by the 
record, because he is bound for the acts of his principal; there is a privity, 
between them. (6 Johns. Rep 153. 7 Ibid 168.) This takes the cases as to 
suretyship out of the general rule, for instance, the cases of bail, and 
prison bound (38) bonds (4 Mass. R. 349); the case of a warranty also; the 
record in ejectment has by some been held to be plenary proof, and by all, to 
be proof of eviction, though it is res inter alios acta. Sommerville v. 
Hamilton. (4 Wheat. 230.)

If this case comes within the reason of sundry exceptions, it must be made an 
exception also. A judgment against a sheriff for money collected by his 
deputy, is evidence in a suit by the sheriff against his deputy. (12 Mass. R. 
163, 4. M. & S. 20.) A judgment against an executor is evidence for the 
executor in a suit by another creditor. Suppose a debt had been recovered 
against the guardian, could not the sureties have given that in evidence to 
protect themselves? The inventory of an administrator, the account current of 
a guardian, the answer of either would be evidence against the sureties. The 
sheriff is made chargeable by the return of his deputy, and his sureties by 
his own return. All these cases go upon the ground that the party is bound in 
consequence of the privity of contract.

Gaston, for the appellee.—Verdicts and judgments are evidence to establish the 
truth of the matters asserted by them, between parties and privies and them 
only; and they are then conclusive. (1 Phill. Ev. 222, 3. 2 N. C., 420. Peake 
72.) The privies alluded to, are privies in blood, in estate, and in law. (1 
Phill. 226. Co. Lit. 352 a & b.) and neither of these descriptions suit the 
defenants. Outram v. Morewood. (3 East 346.)

There cannot be found an English decision holding such testimony as this 
admissible. American decisions somewhat analogous may be found; but these all 
go upon the principle that where a claim is advanced against one who has a 
right to indemnify against it, notice given to the individual upon whom the 
right exists to come forward and defend, and a judgment enforcing the claim, 
make out a full case for relief. See 1 Johns. R. 517. 6 Ibid (37) 159. 4 Dall. 
436. 4 Mass. R. 349. 4 Wheat. 230. This principle is not to be found in the 
present case; but a new principle is set up, that a judgment against a 
principal debtor is evidence against a security, and that without any notice 
to him. This principle seems to be as repugnant to general legal notions as it 
is unsupported by authority; and though authorities against it ought not to be 
asked, yet perhaps they may be found. (1 Term R. 163. 14 Johns. 80.)

Curia adv. vult.

Taylor, Chief Justice—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 defence, 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 hail no opportunity of making a 
defence 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, conditional for the 
faithful performance of the guar-(38)dian's duty; but they have made no 
agreement, by the nature of their contracts, to be 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.)

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 another scire facias against 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 to Baron 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 evidence against the 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, how-(39)
ever, 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, have been 
allowed to give in evidence, against the warrantor, or covenantor, the 
judgment of eviction, or recovery against themselves, 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 covenanter 
was in fact, if not nominally, a party to the first suit, and might properly 
have been affected by the judgment.

In the case of Rennerly v. Onpie, cited from 2 Douglas 517, there was a 
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 at nisi prius as 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 only to be admissible 
evidence; 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 (40) act of 1784, a judgment 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.

The case of Rip v. Brigham and others, was 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." 
Per Buller J. in 3 Term Rep. 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 
defence of the suit, and became essentially parties.

A case was cited from 1 Ld. Raym. 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 the res gestoe. (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 of (41) res inter alios acta, for which Pothier is cited. But upon 
recurring to the work of that perspicuous writer, it will appear 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 of res 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 
dependant 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 exception, sic judicata, to the creditor. The creditor cannot in this case 
reply, that it is res 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 exceptions 
in rem which could be opposed by the principal; it follows, that whatever has 
been decided in favour 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. c. 3. A. 5. s. 63.) No comment is necessary to show, (42) 
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 of res 
inter alios judicata. It is governed by the rule, and the judgment should be 
affirmed.

Hall, Judge.—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 defence. 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 be made 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 made in 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, Judge, concurred.

Judgment affirmed. 

Cited, Moore v. Alexander, 96 N. C., 34.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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