State ex rel. Shuster v. Perkins, 47 N.C. 217, 2 Jones 217 (1855)

June 1855 · Supreme Court of North Carolina

47 N.C. 217, 2 Jones 217

STATE TO USE OF JACOB SHUSTER AND WIFE MIRANDA vs. E. H. PERKINS, et al.

The plea of former judgment contains an averment that it is for the . same canse of action, and between the same parties: a judgment, therefore, against one of several obligors, to a joint and several bond, is no bar to an action against other obligors on the same bond, and not even a bar in favor of the one against whom a former judgment was rendered, if he join in a plea with those not formerly sued.

AotioN of debt on a guardian bond, tried before bis Honor Judge Peeson, at ^he Spring Term, 1855, of Pasquotank Superior Court.

The plaintiff declared against E. IT. Perkins, N. S. Perkins, and J. II. Pool, adm’r. of Wilson, on the official bond of Perkins, the guardian, which is in the usual form, and assigned as breaches thereof, the failure and neglect of Perkins to improve and maintain in repair his ward’s lands, and suffering the same with the buildings thereon, to fall into decay and dilapidation.

The defendants pleaded, “ conditions performed and not broken — former judgment — accord and satisfaction.”

The defendant, to sustain his plea of former judgment, showed a record of the County Court of Pasquotank, setting forth a suit, &c., as follows, viz: “State to use of M. Taft, jr. Guardian, against Edmund II. Perkins- — -Debt. Report made and confirmed and judg’t. accordingly for $1330 16, with int. on $1053 88, from Sept. 1S4Y, and on $2YY 28, from Jan’y. 1818, if not then paid. Clerk allowed $30 for report. Each party to pay one-half cost of report. “ Sept. 20,’47. Received from E. H. Perkins payment in full for this judgment. R. B. Creecy.”

This testimony was objected to bypl’tffi but received by his Honor. • Plaintiff excepted.

Plaintiff offered to show that the damages now sought to be recovered were not included in the report and judgment thereupon, set out in the transcript. This evidence was objected to and ruled out by the Court. Exception by plaintiff.

The Court having intimated an opinion that the plea of former judgment was a bar to the present suit, and that the action could not be sustained, the plaintiff submitted to a non-suit, and appealed.

Smith,‘for plaintiff.

Pool, for defendant.

PeaesoN, J.

The plea of “former judgment” contains an averment, that it was for the same cause of action and between the same parties. The judgment relied on to support the plea in this case, assuming it to- be for the same cause of action, is against Perkins alone; so the averment, that it was between the same parties, is not proven.

A judgment against one of the obligors, in a joint and several bond, is no bar to an action against another obligor, and the obligee is at liberty to go on and take judgments against all of the obligors.

Perhaps the defendant, Perkins, might have supported a several plea of “ former judgment ” against him; but here, the plea is joint, and the former judgment was not between the same parties.

“Accord and satisfaction ” differs from the plea of “former judgment” in this: the one avers a former judgment, between the same parties for the same cause of action, and relies on that fact as an estoppel of record; the other avers a judgment for the same cause of action, and that the judgment has been fully paid off and discharged, whereby the cause of action has been exti/nguished without reference to the parties.

Whether upon the trial of the issue, taken upon the plea of “accord and satisfaction,” the plaintiff was not at liberty to show that the cause of action, or breach assigned in the former suit, was for monies received, whereas the breach, now assigned, was for negelect on the part of the guardian to keep the plantation of the ward in repair, we are not now at liberty to decide ; because as there was error in regard to the first point, the plaintiff is, on that ground, entitled to a vmvre de novo, and a decision of the second is not called for.

Pee CueiaM. Judgment reversed.