Goodall v. Marshall

Parker, C. J.

The facts in this case appear in very extended form in the pleadings, and have been commented upon in the arguments of counsel very much in detail. We have not, however, found occasion to dwell upon many of the particulars, nor is it necessary to refer to them in making known our decision.

The mass of facts set forth in the replication furnish no answer to the plea of the defendant administrator, and we are, therefore, thrown back upon that plea; and it only remains for us to consider whether it be good or bad as a plea in bar. If the judgment rendered in Yermont constitutes a bar, the replication contains nothing which can avoid it. If that judgment does not constitute a bar, the plea is bad.

The fact that the proceedings in Yermont were instituted before the claim was presented in this State, has been referred to. We doubt whether that fact, of itself, would make any difference. At all events, it has not been necessary to depend upon it in coming to a conclusion.

There seems at the first glance no reason why the judgment in Yermont should not constitute a bar to any future proceedings. It was the result of similar proceedings, *168 legally and duly commenced by the same person, in a tribunal which had jurisdiction of the subject matter. In those proceedings the claimant in a formal declaration showed his claim to be the same which he now presents here. An issue was made up, involving the existence of the debt, and, after a trial upon the merits of the claim, the jury have found a verdict against the claimant, and the highest court of the State have ratified the judgment upon that verdict.

Perhaps, had there been no farther proceedings than the presentation of the claim to the commissioner in Vermont, and its disallowance by him, those facts would not have constituted a bar to its allowance here. But even that might well be doubted, and should the question arise it will require consideration. The judgment of an inferior tribunal, having jurisdiction of the controversy, and acquiesced in by the losing party even negatively, as by not claiming an appeal, review, or the like, is in general certainly conclusive.

Had a judgment on the matter now in dispute been rendered between the parties in the supreme court of Vermont during the life time of the intestate, it would, on the principles stated by this court in 7 N. H. Rep. 257 , Whittier vs. Wendell, have been conclusive against the present plaintiff, in a similar action in this State, even if the action here had been commenced before the judgment was rendered in Vermont. That verdict and judgment having, by virtue of the Constitution and laws of the United States, “full faith and credit” in this State, might have been pleaded in bar of the action by Goodall here, if the other party had been living.

Here the difficulty in the present case arises. The judgment in Vermont was not between the present claimant and the deceased, but it was between him and the principal administrator of the estate of the deceased. Nor is the present appeal between him and that principal administrator, but the opposing party now is merely an ancillary administrator, whose legal connection with, or relation to the principal administrator, if any such connection should be thought to *169 exist, is of the most uncertain or remote nature, in this State at least, existing only in a contingent liability to pay over and deliver “the rest and residue of the estate,” under the direction of the judge of probate. N. H. Rev. Stat., ch. 158, § 12.

The general rule is laid down very clearly in 1 Phillips Ev. 324. “A verdict, or judgment in a former action, upon the same matter, directly in question, is evidence for or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit.” And again, at p. 326, “it is laid down, also, as a general rule, that a verdict is not evidence for a stranger against one who was a party to the former suit.”

Are the administrators in different States, in this sense, strangers ? Or can they be considered in any sense privies in law ? As a general rule, it seems to be settled that there is no privity between the principal and the ancillary administrator. Story’s Confl. of Laws 436. See, also, 3 Met. R. 109, Fay vs. Haven; 15 Peters’ R. 1, Vaughan vs. Northup ; 7 Paige R. 239, McNamara vs. Dwyer; Metcalf’s Yelv. 33, note.

An action of debt on a judgment against a foreign administrator will not lie against the administrator of the same intestate here. 2 Rawle R. 431, Brodie vs. Bickley.

Nor can the ancillary administrator, as such, bring suit on a judgment recovered by the principal administrator. 16 Mass. R. 71, 73 , Talmage vs. Chapel. But we know of no decided case, or expression of judicial opinion, which would disallow a plea in bar, on either side, founded on a judgment in another State. In the case last cited, which was an action by an administrator, brought in Massachusetts upon a judgment recovered by him in New-York, the court said, “ an administrator appointed here could not maintain an action upon this judgment, not being privy to it. Nor could he maintain an action on the original contract: for the defendants might plead in har the judgment recovered *170 against them, in New- York.” If a debtor to the estate may successfully make such a plea to an action for a debt which, before judgment in New-York, the ancillary administrator might have collected from him in another State, why may not an ancillary administrator avail himself of a similar plea in bar of a claim which has already been passed upon and adjudged, in legal form, between the same claimant and another representative of the same intestate ? We see no distinction in principle between the two cases.

In considering the effect to be given to verdicts and judgements, courts will always have regard to the real parties to the suit. And in this way various exceptions to the general rule have come to be acknowledged, such as matters of custom, tolls, commons and highways. Also, in questions of pedigree, questions as to the settlement of paupers, (when adjudged in the quarter sessions) criminal proceedings, judgments of courts of exclusive jurisdiction, and judgments in rem in the exchequer and admiralty, are also exceptions. And when we consider the reasons upon which these familiar exceptions are founded, the case before us seems one which may well be added to the list. The judgment pleaded in bar is certainly somewhat in the nature of a judgment in rem. Or the estate of the intestate may be regarded as the real party, notwithstanding there is no privity between the different administrators.

There are many illustrations of this disposition of courts of justice to look to the real instead of a nominal party. In ejectment, the lessee of the plaintiff and the tenant in possession are considered the real parties. 1 Phil. Ev. 324; 6 Binney’s R. 450, Bailey vs. Fairplay. And the equitable assignee of a chose in action, by a suit at his request and expense. 3 Green. R. 362, Rogers vs. Haines. So the record in an action of trespass, Dunning vs. Caruthers, was admitted in an action, Calhoun’s Lessee vs. Dunning; it appearing that Calhoun’s name was employed for Caruthers, and that the parties were really, though not nominally, the *171 same in both suits. 4 Dall. R. 121; and in this connection see, also, 5 Esp. R. 56, Strutt vs. Bovingdon; although there may, perhaps, be some question as to the precise correctness of the latter case. In the action of Case vs. Reeve, 14 Johns. R. 82, Kinnersly vs. Orpe, Doug. R. 499, was cited. It was an action of debt, for a penalty for killing fish, brought against Doctor Cotton’s servant, in which the record of an action against a former servant was given in evidence ; the trespass having been repeated by Doctor Cotton’s express orders. Mr. Ch. Jus. Spencer said that it was reconcilable with the rules of evidence, on this ground only, that both suits were substantially against Doctor Cotton himself ; inasmuch as the acts of trespass were committed by his express direction, for the very purpose of trying the right to the fishery. He defended both suits; and though there were nominally different defendants, substantially Cotton was the real defendant.

With these principles and precedents before us, we do not hesitate to pronounce the judgment in Vermont, rendered on the merits, against the plaintiff, a good bar to the present proceedings to sustain here the claim already fully passed upon by the tribunals of that State.