Jones v. Bullock, 17 N.C. 368, 2 Dev. Eq. 368 (1833)

Dec. 1833 · Supreme Court of North Carolina

17 N.C. 368, 2 Dev. Eq. 368

Robert P. Jones v. Benjamin Bullock & Moses Jones.

Courts of Equity 'falte jurisdiction in all matters of account — and where the administrator of a principal debtor agreed with-the surety to confess assets to the action of the creditor, upon condition that the surety would pay the residue of the debt, deducting the assets really applicable to it, as an account of the administration is necessary to the relief of the administrator, his bill will be sustained.

The plaintiff averred in this bill, that one Radford Gooch, on whose estate he lias taken out letters of administration, was, in his life-time, guardian to the children of one Wheeler and of one Matierson, and has given ■bonds for the faithful discharge of the office — that the defendant Bullock was the surety to those bonds given for •the benefit of the Wheelers, and the defendant Jones to those for the benefit of'the Mattersons — that process on these bonds was sued out against him and the defend' ants, returnable to May term, 1824, of Granville County Court — that the defendants, being fearful of a deficiency in the assets of Gooch, applied to him, and requested him-to-confess judgment to those actions, so as 'to bind the assets, and thereby give them a priority over other debts of equal dignity — that as he bad been fixed with assets in several other actions brought before that time, and was moreover entirely ignorant of the amount of assets in his hands, he refused to accede to ibis request. — whereupon, the defendant Bullock renewed the request, and as an inducement for him to consent, promised him that they would indemnify him from loss by reason of the confession, and would pay any deficiency in the assets which might exist, after deducting them from the sums with which he,the plaintiff was already fixed, The plaintiff tlien averred that in fact he had, in May, 1824, charged himself by confessions of assets nearly to the full amount in his hands, leaving only 166 dollars unadmin-istered, and applicable to the debts due the Wheelers-and Mattersons — that those debts amounted to 688 dollars — . that the defendant/Jatioe/c,notwithstanding his agreement, had procured himself to be appointed guardian to the Wheelers, and had caused sci.fas. to issue upon the judgments confessed in their favor, with the- intent to-charge the plaintiff de bonis propriis with them. The bill prayed for an injunction against these actions, an account of the assets of Gooch in. the plaintiff’s handstand for general relief.

An answer denying the bill must be disproved by two witi to entijj plaintiif ’ cree.

A defendant against whom no decree is prayed, & whohasnodig-qualifyinginterest may be examined by the plaitjtiE

The defendant Bullock denied all the allegations of the bill. The defendant Jones never answered, and as to him the bill was taken pro confesso. The agreement, as set forth in the bill, was directly proved by the gentlemen of the bar who conducted the suit against the plaintiff on the guardian bonds. There had been an order in the cause for examining the defendant Jones de bene esse — he also distinctly proved the case made in the bill. There was no proof that the defendant Bullock had procured the appointment of guardian to the Wheelers.

Brcereux and W. II. Haywood, for the plaintiff.

Mash, for the defendant Bullock.

BaNxei, Judge.

After stating the pleadings and proofs, proceeded as follows: — First, as to the agreement, it is proved as set forth in the bill by the deposition of the counsel; but the law of this court requires two witnesses to contradict the denial of the answer. The deposition of the defendant, Jones, has been taken, subject to all just exceptions. Can this deposition be legally read? The plaintiff seeks no decree against Moses Jones, and it appears that the said witness has no interest of his own to be affected by any decree that may be rendered against Bullock. The plaintiff in this case may examine as a witness any one of the defendants against whom there is no decree sought, and who is not concerned in interest. (2 Mad. ch. 416, 417-18.) This witness proves that Bullock agreed, in case the plaintiff would confess the judgments,that he would not hold him liable to pay more in discharge of the said confessed judgments, than the assets in his hands. This witness supports the first, and both establish the agreement as set forth in the bill.

The second objection made by the defendant Bullock is, that it is a case where relief might have been had at law. The answer to this objection is, that although the plaintiff might have had an action at law, he could not have had as complete relief there, as in this court. It is necessary that an account should be taken, to ascertain whether the plaintiff had assets to pay all the judgments confessed, or what portion of the same. In a court of law, and especially in an action where the administrator of Gooch must be plaintiff, it will scarcely be practicable to take such an account with correctness, and this court affords peculiar facilities, and possesses proper jurisdiction in matters of account.

Thirdly, the defendant alleges that the plaintiff has, or might have had assets to pay all the judgments, if he had used ordinary diligence in collecting the same.— The master has, by the consent of both parties, taken an account of the assets belonging to the estate of Gooch, that came to the hands of the plaintiff, and also an account of the judgments against the said administrator, and his other liabilities. The defendant has filed several exceptions to the report. On looking into the order of reference, it appears that the master was required to take an account of the amount of assets that came to the hands of the plaintiff, and also an account of the amount of judgments which had been rendered, against the administrator, their sums and dates. The master has charged the plaintiff only with such assets as actually came to his hands; lie does not appear to have charged him with any sums of money that may have been lost by the mismanagement or negligence of the plaintiff; nor does he report that there has been no loss on that account. The master has reported several judgments rendered against the plaintiff, after May Court, 1824, the timo wiien the plaintiff confessed the judgments as mentioned in the bill, and has given the plaintiff credit for the same. But it appears to us that the plaintiff was not entitled to be credited for any judgments rendered against him after the date when he confessed the judgments in court. The plaintiff might have barred all claims which were brought against him after May Court, 1824, by pleading the judgments which he had confessed in court against these claims. If he, through ignorance or negligence, omitted to plead the judgments which were had against him in court, to warrants or suits that were subsequently brought against him, it shall not operate to the injury of the defendant. The report, as it stands, cannot be easily rectified, and we think it best to set it aside altogether, and order another reference to the master, who will take an account of the amount of assets that actually came to the hands of the plaintiff as the aministrator of Gooch, or which might have been collected by him,if he had used ordinary care and diligence. The master will also take an account, and report what judgments or liens against the estate of Gooch,existed prior to May Court, 1824. Such judgments and liens the plaintiff will be credited with in his administration account, and no other, for after that daté, he had the power of barring all claims by pleading the judgments he had confessed in court, and if he did not do it, it was his own fault, and BulloGk shall not be prejudiced thereby.

The report, therefore, is directed to be set aside, and the case is again referred to Thomas B. Littlejohn to take an account of the estate of Gooch that came to the plaintiff, or might have been obtained by his using ordinary diligence. The commissioner will also ascertain what judgments or legal liens existed against the plaintiff as administrator of Gooch, before the date when he confessed the judgments mentioned in the bill, viz: before May Court, 1824, of Granville county, and allow the plaintiff credit for such judgments and liens, and his expenses and reasonable commissions. The commissioner is also directed to report whether any .payments, and if so, what payments have been made on the judgments confessed, and by whom made, and what is due thereon to the plaintiffs respectively in the said judgments.

Per Curiam — Direct an account.