McKellar v. Bowell

• Decision Date: 31 December 1825
• Citation: 11 N.C. 34
• Court: North Carolina Supreme Court
• Parties: MCKELLAR AND THE OTHER JUSTICES OF CUMBERLAND, TO THE USE OF ARCHIBALD SMITH, JOHN SMITH, AND DAVID SMITH, v. BOWELL AND CAMPBELL.

11 N.C. 34

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 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. 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 theadministrator 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 against

the administrator de 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 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.

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 beconcluded 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,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...