State Ex Rel. Brown v. Pike

Counsel

Scales Scales, for appellants . The question is, whether the decree against the administrator in a cause in which the security was no party, is conclusive against the security in a suit upon the administrator's bond. Vanhook v. Barnett , 15 N.C. 268 ; Justices of Cumberland v. Bowell and Campbell , 11 N.C. 34 ; Chairman of Mecklenburg County Court v. Clark Springs , 11 N.C. 43 , all settle the question, that it was neither conclusive, prima facie , nor any evidence at all against the security, at least as to assets. This was settled law up to the enactment of the Legislature in 1844, to be found in Bat. Rev., Chap. 43, Sec. 10. The plaintiff's case rests on this statute, which is in derogation of the common law and must be strictly construed. There has been no adjudication of the question since. In Bond v. Billups , 53 N.C. 423 , the court do not decide the question. The words of the statute are, that it "shall be admissible and competent for or towards proving;" but this is very different from saying it shall be conclusive, as was said in the court below. "The security made no agreement by the nature of his contract, to be concluded by a judgment or decree against his (533) principal. He ought, of course, to be bound only upon the assignment and proof of a breach of the condition in a suit against himself." McKeller v. Bowell , 15 N.C. 34 . Scott Caldwell, contra: I. The jury find by their verdict that there is a breach of the defendant's bond. This is the only real issue raised by the answer, and it has been disposed of by the verdict of the jury. II. The defendant Neese does not set up any defence in his answer which would entitle him to have the issue asked for submitted, or to offer proof upon it if submitted. Rankin v. Allison , 64 N.C. 673 , was a judgment at return term, notwithstanding the answer. The court say: "We do not see that the answer states any sufficient defence," etc. The court refused to disturb the judgment. The answer admits the judgment and does not attack it by any direct allegation of fraud or mistake, but only by a general allegation of errors and oppression, which are not sufficient to falsify or surcharge. The only evidence which could have been received from Neese to sustain his issue, would have been evidence to impeach the judgment; but none such was offered, nor could it have been received unless upon sufficient allegations in the answer — such as fraud, error or mistake, setting out the particulars therein. III. The answer is insufficient as a bill to surcharge and falsify. The admissions of the answer destroy every allegation attempted therein as a defence. If it be true, as admitted, that plaintiffs have a judgment against the administrator, Joel Pike, that judgment fixes him with a surplus for distribution, and such judgment while it stands unimpeached, is evidence against the security, Neese, and entitles the plaintiff to (534) recover, and no issue is necessary. Bat. Rev., Chap. 44, Sec. 10.