
    NOAH CLARK’S Executors against CLARK.
    ON CERTIORARI.
    Decree of Orphans’ Court, in favor of an executor against his co-executor, in a controversy between the heirs and executors, is no ground for an action on it as a judgment, in a suit between executors.
    The plaintiff declared in this court on a judgment obtained in the Orphans’ Court of the county of Essex, by their testator, against the defendant, John Clark. [*] To this declaration the defendant plead nul tiel record; to which the plaintiff replied that there was such record, and took issue. This cause being set down in the paper for trial by the record, was called on in its order, when Mr. I. JET. Williamson, for the plaintiff, produced a record from the Orphans’ Court of the county of Essex, duly certified, which he insisted was a record of a judgment in that court, against the defendant, and in favor of the testator of the plaintiffs. The record produced contained a citation from the Orphans’ Court before mentioned, to the plaintiff’s testator, Yoah Clark, and the defendant, John Clark, as executors to their father, James Clark, to account in that court. This was at the instance of Samuel Meeker, and Mary his wife, who were interested in the estate of James Clark. In the course of this controversy, the cause was referred to auditors, who, in their report, stated a sum of money due from John Clai’k, the defendant, to-[83] Noah Clark, the testator of the plaintiffs. This report was afterwards confirmed by the court, and this statement and confirmation, was the judgment relied on.
    
      Mr. M’ Whorter and Mr. Van Arsdale, for the defendant, contended that this record could not be considered as a judgment in favor of the testator of the plaintiffs, nor against the defendant.
   Kirkpatrick, C. J.

— Delivered an opinion at some length against the plaintiffs. This opinion was delivered by the Chief Justice without notes; the reporter hath not thought the subject of importance enough, to request him to reduce it to writing, knowing that his official duties at the time required much labor.

Rossell, J. — Concurred.

Pennington J.

— The question for the determination of this court is, whether or not the record produced by the plaintiffs, proves the issue in this cause; whether the sentence or decree of an Orphans’ Court, can be declared on as a record, and nul tiel record plead thereto, is not brought in question, otherwise, the declaration should [*] have been demurred to. If the record produced is a judgment, sentence or decree of the Orphans’ Court of the county of Essex, regularly obtained in the course of judicial proceeding, for a sum certain, in favor of the plaintiff’s testator, and against the defendant, the issue is supported by the record. The record produced, proves that the plaintiff’s testator, Noah Clark, and the defendant John Clark, were joint executors of their father James Clark’s estate; that Samuel Meeker and wife, having an interest in the estate of .lames Clark, cited them in the Orphans’ Court to account: that in the progress of this controversy, the accounts were referred to auditors, to re-state; that the auditors, among other things, stated a sum of money due from one co-executor to the other; that is, from the defendant to the plaintiff’s testator; and that this report of the auditors was confirmed by the court. It is important in the consideration of this cause, to keeji in mind, that the controversy in the Orphans’ Court, was not between the parties to this suit; but that it was between Meeker and wife, on the one side, and the executors of Janies Clark on the other; they were jointly defending themselves against Meeker and wife. The judgment if any, was in favor of Meeker and wife, against them jointly, and not in favor of one co-executor against the other. It is true, that in the re-stating the accounts of the executors with the estate, it is incidentally stated that a sum of money, some way [84] connected with the estate, was due from the defendant to his co-executor, the testator of the plaintiffs, and that this report of the auditors was confirmed by the court; But this cannot be considered as a judgment, sentence or decree of the court in favor of one executor against the other. It is a mere collateral fact, incidentally brought into the account, not between the parties in controversy, and about which there was no dispute. Supposing these auditors had stated that a sum of money, ivas due from J. S. to the estate of Janies Clark, and the court had confirmed the report, could the executors maintain an action against J. S. on a judgment [*] against him ? Most certainly they could not; nor with more propriety, can this action be supported. If this proceeding, as it respects the parties in this court, was not corarn nonjudice, it was at least res inter aMos nota, either of which is sufficient to take away its effect as a judgment in the issue now pending.

By the Court. — Judgment for the defendant.  