State Ex Rel. Brown v. Pike

The judgment must be affirmed. Prior to 1844, a judgment against the administrator was conclusive evidence both of the debt and of assets. But as to the surety upon the administration bond, who was not a party to the action, it was no evidence whatever of assets, but was conclusive of the debt only. As to him, the judgment was res inter alios judicata. Armisteadv. Harramond, 11 N.C. 339; McKellar v. Bowell, 11 N.C. 34; Stricklandv. Murphy, 52 N.C. 242; Bond v. Billups, 53 N.C. 423; Chairman v.Clark, 11 N.C. 43.

The act of 1844, Bat. Rev., Chap. 43, Sec. 10, introduced a change in the law of evidence. The act provides that in actions brought upon official bonds of administrators, and others there named, "when it may be necessary for the plaintiff to prove any default of the principal obligors, any receipt or acknowledgment of such obligors, or any other matter or thing, which by law would be admissible and competent for or toward proving the same as against him, shall in like manner be admissible and competent against all or any of his sureties who may be defendants, with or without him in said action."

The only natural and reasonable construction of this act is, that when the evidence was conclusive against the principal, prior to the act, it became "in like manner" conclusive against the sureties, after the act. The judgment was therefore conclusive against the surety, both of the debt and of assets sufficient to pay it. Such was the law of evidence when the surety executed the bond, and he cannot complain.

PER CURIAM. Judgment affirmed.

Cited: Badger v. Daniel, 79 N.C. 379; Moore v. Alexander, 96 N.C. 36;McNeill v. Currie, 117 N.C. 346; Miller v. Pitts, 152 N.C. 632; R. R. v.Lassiter, 208 N.C. 212.

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