
    CALVIN EDNEY and others against AMBROSE J. EDNEY.
    Where a legatee purchased property at the sale made by the executor, and gave bond with sureties for the price, it was Held that a decree in favor of the principal, in a court of equity in another State, to which such sureties were not parties, declaring the said bond to bo set-off by the claim for a legacy, is not evidence in a suit brought by the sureties to establish the same set-off, and that the executor is not estopped by such decree from proceeding to collect the bond from the sureties.
    Cause transmitted from the Court of Equity of Henderson county.
    One Joseph Pickett, purchased of the defendant, A. J. Edney, as the administrator pedente lite of Mrs. Sarah Edney, a negro woman and child belonging to the testatrix's estate, for which he gave a bond for $435, with Calvin Edney, Marvel Edney and Samuel J. Edney as his sureties. After the litigation was over, during which he was appointed administrator, and the will of Sarah Edney was established, the said Ambrose J. Edney qualified as executor to the same, and brought suit against the plaintiffs Marvel and Samuel J. Edney, in the Superior Court of Henderson, and recovered judgment for the principal and interest of the said bond. Joseph Pickett, having before the commencement of of this suit, removed to Gilmer county in the State of Georgia, the bond in question was sent thither and put in suit in the Superior Court of that county, and a judgment at law was recovered in that court, against him, the said Joseph Pickett., for the principal and interest due thereon, from which he took an appeal and while the appeal was pending, Pickett filed a bill in the court of Equity for Gilmer county, Georgia, for an injunction, alleging that in right of his wife, who was a daughter of the testatrix, he was entitled to a legacy under the will of Mrs. Sarah Edney, and that the plaintiff in the suit at law, as executor of her will, had in his hands, over and above what was reqired for the payment of the debts of the estate, a sum applicable to the payment of his legacy, and more than sufficient to pay all the unpaid balance of the said note and interest, and praying that this fund might be declared to be an equitable set-off to the action, and thatthefurtherproceedingsatlawbe perpetually enjoined. To this bill the said Pickett only was made a party plaintiff. The defendant answered and made an exhibit of the state of his dealings as executor, and insisted that there was nothing in his hands applicable to the legacy coming to Pickett in right of his wife. There was replication to the answer and the cause finally heard in the court of equity of which the result is set forth in the following extract from the record certified from that court:
    “ State of Georgia, Gilmer county, May Term, 1854, present, his Honor David Irwin, Judge of the said court. Appeal Docket — verdict:—We the Jury find and decree that the note sued on in the common law action which is now pending on the appeal in the Superior Court of Gilmer county, in favor of Ambrose J. Edney against Joseph Pickett, is paid off, and fully satisfied, and wefurther decree that the plaintiff in the said common law action, now pending as aforesaid, be, and is hereby, perpetually enjoined from prosecuting said action,and we further decree that Ambrose J. Edney pay fifty-five dollars and all costs. May 11th, 1854. Signed by John M. Sharp, foreman, and the other jurors.” * * *
    “ "Whereupon it is ordered and adjudged and decreed b}r the Court, now here, that the note sued on in the common law action, which is now pending on the appeal in the Superior Court of Gilmer county, in favor of Ambrose J. Edney against Joseph Pickett, is paid off and fully satisfied ; and we further decree, that the plaintiff in the said common law action, now pending as aforesaid, he, and is hereby, perpetually enjoined from prosecuting said action, and that the said plaintiff cease further to prosecute the said action against the said Joseph Pickett, and that the said Joseph Pickett do recover from the said Ambrose J. Edney, the sum of - for costs in this behalf laid out and expended.” Signed by the Judge.
    The bill alleges that, notwithstanding the fact, that the plaintiff lias in his hands a fund, to which the said Picket, the principal, in the bond, is entitled, and notwithstanding that lie is perpetually enjoined from collecting the said bond out of the principal debtor, lie has caused an execution to issue on the judgment obtained against Marvill and Samuel Edney in the Superior Court of Henderson, and threatens to have their property sold to satisfy the same. The prayer of the hill is, to have it declared that the debt, due on said judgment, is set off and discharged by the claim of Pickett for a legacy, and that the defendant be perpetually enjoined from enforcing the execution.
    Defendant denied that there was any tiling in bis hands applicable to the legacy of Pickett, and says the debt, sued for, is eo n ng to him for commissions, and other charges incurred in selling the eotate of Mrs. Edney.
    
      The cause was set down for hearing on the bill, answer, exhibits and proofs, and sent to this Court.
    
      J. W. Woodjmi and ffl. W. Woodfin, for plaintiffs.
    
      Shipp, for defendant.
   Pearson, J.

The equity of the plaintiffs is put upon two grounds : That Pickett, the principal debtor, is entitled to an equitable set-off, by reason of an amount due him, in right of his wife, by the defendant, as executor of her father, and the plaintiffs, as sureties, are entitled to have the benefit of this set-off. In the seeond place, that by the proceedings in Georgia, it is judicially ascertained and declared, that the debt in question has been “ fully paid off and satisfied” by Pickett, and it is thereupon decreed, that the defendant be perpetually enjoined from proceeding further against the said Pickett in respect to the debt.

If the plaintiffs had proved the existence of the supposed equitable set-off as between Pickett and the defendant, there could be no question as to their right to have the benefit of it. But in respect to such proof, there is an entire failure, and this Court cannot make the declaration, which is essential to their equity, to wit, that the defendant, as executor, has in his hands, or is chargeable with a fund, in which Pickett is entitled to share. The answer denies that after payment of debts, &c., there is any residue subject to distribution, and the plaintiffs, instead of asking for a reference to have an account stated, which is necessary, according to the course of the court, whenever the object is to settle an estate, and ascertain the existence of a fund, rely upon the verdict and decree in the proceeding in Georgia, for the purpose of establishing that allegation. The proceeding in Georgia is a bill in equity by Pickett, against the defendant, in which it is alleged that the defendant, as executor of the father of Pickett’s wife, has in his hands, or is chargeable with, a residuary fund, in which Pickett is entitled to a share ; that such share is of an equal or greater amount than the debt sued for, and the prayer is for an account, that Pickett may have the portion of the residuary fund, to which he is entitled, applied in satisfaction of the debt, and that the defendant be enjoined from the further prosecution of the action at law. An answer is filed, in which the defendant denies that there is any residuary fund in his hands, or with which he is chargeable, and aver-s that after paying the debts, &c., the assets of the estate of his testator are exhausted, leaving a balance due to him for commissions, &c. The proceeding then, sets out a verdict and a decree in favor of the plaintiff.

Laying no stress upon the fact, that no account is stated, which ought to have been done according to the course of a court of equity, and that a j ury is unfit to deal with a matter of account, which involves a complicated settlement of an estate ; and laying no stress on the further fact, that the verdiet and decree go beyond the allegations of the bill, and find that the debt has been fully paid, in which there is a variance, for the bill does not allege a payment, but simply an equitable set-off, this Court is opinion that the verdict'and decree are not admissible as evidence on the part of the plaintiffs, in this suit, because they were not parties, and the rule resinter alios acta applies. So, that the proceeding in Georgia, cannot be used as evidence, either for or against them, in reference to the truth of the facts therein found or declared.

Upon the second ground, insisted on in support of the plaintiffs’ 'equity, the decree is evidence of its own existence; and the question is, what is its legal effect as between the parties to this suit ?

It is urged, that as the defendant is enjoined from collecting the debt out of Pickett, it would be an indirect violation of the injunction, if he collects it out of the plaintiffs, who are his sureties, and that it is an anomalous state of things for a creditor to be at liberty to collect a debt out of the sureties, when he has no right to collect it out of the principal. The suggestion is plausible, but it is fallacious. The principal is protected because, in his suit against the creditor he was able, in some way, to establish the allegation, of an equitable set-off or of payment in full, and if the sureties, in their suit against the creditor, could establish either of these facts, they would be protected in like manner. But they are unable to establish either of these facts, and consequently have not entitled themselves to the like protection, and their inability to do so, proves that, although as between the principal and the creditor, these facts are to bo taken as true, yet, in point of fact, they are not true, and the creditor is not estopped as against the sureties by the former proceeding, to which they were not parties. “ Estoppels must be mutual, and bind only parties and privies.” Eor the sake of illustration: suppose one of two joint and several obligors is sued, and the plea of payment is found in his favor, afterwards the other obligor is sued, and pleads payment by the obligor who is first sued, and in support of the plea, offers no proof but the verdict and judgment in the former action ; it is certain such evidence is not admissible as to the truth of the fact alleged, and it is equally certain, that in the absence of proof, the issue must be found against him, and he will have the money to pay, notwithstanding the fact of the verdict and judgment in favor of his co-obligor; in other words, as he was not a party to the first action, he is not bound by it, nor is he entitled to the benefit of the event of that suit; under the rule res inter alios acta.

Per Curiam, Bill dismissed.  