17 N.C. 368 | N.C. | 1833
The defendant Bullock denied all the allegations of the bill. The defendant Jones never answered, and as to him the bill was taken proconfesso. 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. 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 *298 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 (370) 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 administration 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; he 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 (371) May court, 1824, the time when 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 *299 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 administrator 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 date 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 Bullock 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 Country, 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 (372) thereon to the plaintiffs respectively in the said judgments.
PER CURIAM. Direct an account.
