Sturges v. Beach

On a bill in chancery by C., claiming to b a creditor of the late partnership of A. and B., dissolved by the death of A., a ainst the executors of A., stating the insolvency of B. the surviving partner, and seeking satisfaction of his claims out of A.’s estate, the plaintiff offered in evidence a judgment in his favour in an action at law against B. as surviving partner: Held that such judgment, though admissible to prove the simple fact of a recovery against B., was no evidence of the existence of a debt against the partnership so as to charge the defendants.

THIS was a bill in chancery, stating, that Birdsey Norton, Esq. and John C. Bush were, from the first of July 1808 to the 27th of May 1810, and long afterwards, merchants in company, under the firm of Norton & Bush, and during that time, the plaintiff transacted business for them in the United States, and in foreign countries ; that in the course of such business, the plaintiff purchased for said Norton & Bush, and sent to them, diverse vessels, goods, wares and merchandize, and remitted to them large sums in bills of exchange, bank checks, and cash, which were received and disposed of by them, to account for the same to the plaintiff ; that said Norton & Bush, being greatly in arrear, and refusing to render their account, the plaintiff, in April 1812, after the death of Norton, commenced his action of account at law against Bush, as surviving partner, and after an appearance on the part of Bush, and a hearing before auditors, recovered final judgment against him, in the superior court, for the sum of 3996 dollars 66 cents, and costs of suit; that before such judgment was rendered, Bush became an utter bankrupt, and absconded ; that Norton at his decease, owned a large estate, which has since gone into the hands of the defendants, his executors, and is liable in equity to the payment of said judgment; that besides this, Bush, before he absconded, made over to the defendants all the property in his possession, and all the books, papers and credits of the firm, for the benefit of Norton's estate, and to discharge the debts of the firm ; and that the defendants, as executors of Norton, had notice of said action against Bush, during the pendency thereof, and employed counsel to defend, and have since had notice of the judgment. The plaintiff therefore prayed, that as he was remediless at law, chancery would compel the defendants to make payment. On a hearing before the court, the plaintiff offered in evidence an exemplification of the judgment stated in the bill; to the admission of which the defendants objected. By agreement of parties, the cause was thereupon continued to the next term, that the question of law as to the admissibility of this evidence, might be argued, in the meantime, before the nine Judges. contended, that Bush being the representative of the firm, a judgment against him, in that capacity, must be, in effect, a judgment against the firm. It is absurd to say, that the estate of a deceased partner, which is admitted to be subject to the liabilities of the partnership, is not bound by a judgment against the legal representative of the partnership. If Bush had satisfied the judgment in this case, the executors of Norton would be liable to him ; and the judgment thus satisfied would be a sufficient voucher for him against them. If the plaintiffs had failed of a recovery against Bush, it is clear that they could not come against the executors of Norton. Why ? Manifestly, because the executors of Norton could plead the judgment in the suit against Bush in bar. They stand in the light of privies to that judgment. relied upon the established rule of law, that a judgment is evidence only against the parties to the suit, or others standing in the relation of privies. Peake’s Ev. 38. 68. (3d edit.) The present defendants are in no sense parties to the judgment against Bush. They have had no day in court ; no opportunity to examine witnesses, or to defend themselves, or to review the judgment. Nor are they privies in relation to it. They are not privies in estate, or in blood, or in tenure. Are they privies in representation ? They are the personal representatives of Norton, but are strangers to the partnership. These are the only privities known in law. Beverley’s case, 4 Co. 123. b. 124. a. Co. Litt. 271. a. If the judgment against Bush is binding upon the representatives of Norton, why does not the plaintiff, instead of setting forth the original cause of action, and giving a history of the proceedings, bring an action on the judgment in the simplest manner? The principle contended for by the plaintiffs is also opposed to sound policy ; for it would open a door for collusion between the creditors of the partnership (or those claiming to be such) and the surviving partner, to the prejudice of the estate of the deceased partner.