
    
      David P. Allen vs. Wm. Roundtree, Exec'r. &c.
    
    1. A. sold a slave to B. with covenant of warranty in the bill of sale. C. recovered the value of the slave from B. in trover, under paramount title, of which action A. had notice. Held, that A. was a privy to the recovery against B., and concluded, as to every matter which appeared by the record, but that C’s. recovery against B. was not conclv,sive that C’s. title was paramount to that conveyed by A.
    2. An action had been commenced by the plaintiff against defendant’s testator, on the 12th Feb. 1823, and abated by defendant’s death, October term, 1825. Present action commenced 11th September, 1826. Held, that the first suit, which abated by defendant’s death, prevented the operation of the Statute of Limitations. See Cook et al. vs. Wood, 1 M’Cord, 139, and Hwnter vs. Gletm, 1 Baily, 542.
    3. A vendor against whose vendee there had been a recovery, and who is liable over to his vendee, may remove the cause of his liability by a bona fide payment to the party legally entitled to receive the amount recovered.
    4. Miter: — If the vendee had paid the fecovery against him, and a payment is after-wards made by his vendor to the plaintiff in the recovery, such payment would be in his own wrong, and could not discharge the vendee’s right of action against himself.
    5. A payment to a jn'ockein ami, who has recovered a sum of money for the benefit of a minor, is not a legal payment or satisfaction of the recovery, unless the minor, on attaining to maturity, or his legal representatives after his death, have actually or legally ratified and confirmed it. A pro. am. is merely authorized to prosecute the suit to final judgment.
    
      Before Earle, J., at Union, Spring Term,, 1832.
    This was an action of covenant on the warranty of title, in a bill of sale, to a negro girl named Molly, sold by Robert Duncan, the defendant’s testator, to the plaintiff. There had been a recovery against the plaintiff, for the value of the negro, in an action of trover, brought by Elizabeth Stewart, under paramount title ; and this was an action to recover over against the vendor. The bill of sale is dated the 22d April, 1819. The writ against the plaintiff, at the suit of Elizabeth Stewart, was lodged soon after, returnable to fail term, 1819. Robert Duncan, the vendor of the plaintiff, and defendant’s testator, had notice of that suit, conducted' the defence for Allen, employed counsel, subpoenaed the witnesses, and was present at the trial. There was a verdict at March term, 1822, for $465.against the plaintiff; judgment signed May 13th 1822. An exemplification of the record of this recovery was. produced in evidence by the plaintiff. It was objected to, because it did not appear that'any execution had issued on the judgment, as none appeared on the exemplification. His Hon- or overruled the objection. His Honor held the record not only admissible in evidence, but conclusive of the question, so far as related to the title to the negro; the defendant having had notice of the suit, and having conducted the defence. The statute of limitations was pleaded, which the plaintiff avoided by producing the record of a former suit brought by plaintiff against Robert Duncan in his life time, and which abated by his death. The respective dates are as follows: the writ in the first suit, lodged 12th February, 1823; abated by the death of Duncan, October term, 1825. The writ in the present aetion lodged 11th September, 1826; and it was contended for the defendant, that the first suit, which abated by the death of Duncan, did not prevent the operation of the statute. The presiding Judge ruled otherwise. See Cooket al. vs. Wood, 1 M‘C. 139.
    The defence attempted to beset up was, that the plaintiff had not paid off the judgment to Miss Stewart, and that therefore he had sustained no damage, and the covenant was not broken. The evidence to sustain this defence was, that the plaintiff left the State immediately after the trial, and that Miss Stewart did not get the negro. But under the recovery she could not obtain the negro, except by levy and sale, and although no execution had issued, yet the plaintiff may have paid her the money. The defendant then offered in evidence a receipt, of which the following is a copy: “Received of Robert Duncan, six hundred dollars, in full of a judgment and costs, obtained against David P. Allen, in Laurens court, received by me this, the 2d day of November, 1823. (Signed) John Stewart.”
    John Stewart was the next friend of Elizabeth Stewart, who was a minor; in the suit against the plaintiff, the style of the suit was “Elizabeth Stewart, by her next friend, John Stewart.” There was no evidence that he had any other authority to receive or discharge the debts of Elizabeth Stewart, who was not his ward.
    The presiding Judge overruled this defence; the pretended receipt is subsequent to suit brought by the plaintiff against Duncan. Elizabeth Stewart was the plaintiff in the recovery against Allen; and although she was a minor when that suit was instituted, there is no proof that she was when the receipt was given. If of full age, she alone could receive payment and release the judgment; if a minor, none but her guardian, lawfully appointed, could do so; and the power and authority of flip next friend ceased with the recovery of the verdict. But without these objections, his Honor was of opinion that the plaintiff, in the recovery against Allen, could not discharge his fight of action agáínst the defendant, or his testator; and that would be the effect of giving efficacy to the receipt. As to the plaintiff and defendant, the receipt was inter alios acta; the payment by Duncan was voluntary; for although he was liable over to the plaintiff, he was not liable to Stewart; nor could that judgment be enforced against him.
    The verdict was for the plaintiff; and the defendant appealed and moved for a nonsuit and new trial, on the following grounds:
    
      For a nonsuit. •
    1. Because there was no proof that defendant had broken the covenant sued on.
    2. Because if there was any proof that the covenant was broken, the suit was barred by the statute of limitations.
    
      For a neio trial.
    
    1. Because the court held that the record in the case of John Stewart, guardian, vs. D. P. Allen, trover for negro, in which there was a verdict for plaintiff, was conclusive against defendant, he having been vouched to appear and defend the case.
    2. Because the court ruled that the receipt of John Stewart, guardian, plaintiff in the case of Stewart, guardian, vs. D. P. Allen, could not be given in evidence, when the receipt was in full for debt and costs against D. P. Allen.
    Williams, for the motion. -, contra.
   Curia,per

O’Neall, J.

The four grounds taken for a non-suit and new trial, present the three following questions, viz: 1st. Was the recovery in the case of Elizabeth Stewart, per pro. ami, vs. David P. Allen, evidence to any, and what, extent of the breach of the covenant of warranty 1 2d. Was the plaintiff barred by the statute of limitations'? 3d. Was the receipt of the prochein ami of Elizabeth Stewart for the verdict and costs, in the case against this plaintiff, admissible in evidence in discharge of this action'?

1. The record in the case of Elizabeth Stewart, per pro. ami, vs. David P. Allen, after proof of notice to the warrantor, Duncan, to defend the suit, and that he did so, was evidence to shew a legal eviction. His warranty, and notice to him-to come in and defend the suit brought to recover the slave, the title of which he warranted, made him a privy to that recovery, and it would conclude him as to every matter which appeared by the record. But the nature of the title by which the eviction took place, whether paramount to Duncan’s, or only to Allen’s title, by being derived from him subsequent to his purchase from Duncan, cannot appear from the record in an action of trover: The fact that Duncan was required as warrantor to defend the suit, and that he did so, coupled with the fact of eviction by the recovery had in that case, so defended, might create a very reasonable presumption, that the title by which it took place was paramount to his. But it is only a presumption, on which the jury might have found the covenant of warranty to be broken. The recovery is not, as the Judge supposed, conclusive “so far as related to the title to the negro.” In Blasdale vs. Babcock, 1 J. R. 517, the defendant, it appeared, had sold to the plaintiff a horse, which was afterwards claimed and recovered by one Snow, in an action of trover. The action was on the implied warranty of title; the record of the recovery of Snow vs. the plaintiff, Blasdale, was received in evidence, upon proof that the defendant, Babcock, had been notified by the plaintiff, of the action brought against him, and that the defendant, with another witness, had attended at one court as witnesses for the defendant in that cause, but not at the term at which the cause was actually tried. The C. J., Kent, instructed the jury that, “as it appeared from the evidence that he had notice of the action, the recovery of Snow, against the present plaintiff, though not conclusive evidence, toas strong evidence of Snow's right.” On appeal, the Supreme Court of New York said, “The record was proper evidence, for without it, the plaintiff could not have shewn a legal eviction. The first notice given to the defendant, of the other suit brought against the plaintiff for the horse, was sufficient; and he was bound to know all the subsequent proceedings, without a special notice of the time every subsequent court was held. There was no misdirection by the Judge, and we are of opinion that the plaintiff is entitled to a judgment.” In a note to 1 Stark, on Ev. 189, I find the following principle extracted from Saunders vs. Hamilton, 2 Hayw. 226-282: “In an action by A. against B,, to recover damages for the value of a slave sold by B. to A., and which had been recovered by a paramount title by C. from A., record of the action between C. and A. is evidence of the “fact of eviction,” and of damages, “but not of C’s. title.”

2. Upon this question we concur with the presiding Judge, that the former suit, which abated by the death of the defendant, Duncan, prevented the operation of the statute of limitations; and in addition to the case of Cook et al. vs. Wood, 1 M‘C. 139, to which he has referred, I will refer to the case of Hunter vs. The executors of Glenn, decided at this place, May term, 1830, in which this very question was settled.

3. It was ruled by the Circuit Judge, “that the plaintiff, in the recovery against Allen, could not discharge his right of action against the defendant or his testator, and that would be the effect of giving efficacy to the receipt.” In this, I think, he was incorrect. The plaintiff, Allen’s, right of action depends upon the fact whether he has sustained any damage by reason of the recovery against him. The effect of it, as to the slave, was, at least, upon being satisfied, to vest a good title in him. By whom it is satisfied is perfectly immaterial to him, so that he can never be called upon to pay it. So long as the reeovery remained unsatisfied, it constituted evidence of damages sustained by him, by reason of the breach of the covenant of warranty of title. For he is legally liable to pay to another the value of the slave which he purchased from the defendant’s testator. But if the defendant’s testator thought proper to pay it, without waiting a' recovery against himself, he had the right to do so. For his eventual liability gave him an undoubted right to remove the cause of it by a bona fide payment to the party legally entitled to receive it. If the plaintiff in this action had paid the recovery against him, then a payment afterwards by the defendant, to the plaintiff in the recovery, would have been in his own wrong, and could not have discharged this plaintiff’s right of action. His damages would have been actually sustained, and could only have been satisfied by a payment to himself.

Note. — In 1 Starkie Ev. 217, it is said that a party is not in general bound by a verdict or judgment, unless he be a party to the suit, or be in privity with the party, or possess the power of making himself a party. On this point see the following cases; Burrill vs. West, N. Hamp. Rep. 190. Wood vs. Davis, 7 Cranch, 271. Davis vs. Wood. 1 Wheat. 6. Paynes vs. Coates and al., 1 Munf. 373. Turpin vs. Thomas, 2 Hen. & Munf. 139.

I concur, however, with the presiding Judge, that a payment to the pro. ami of the plaintiff, Elizabeth Stewart, was not a legal payment or satisfaction of the recovery, unless she, on attaining to maturity, or her legal representatives (for we understand that she is dead,) after her death, have actually or legally ratified and confirmed it. A pro. ami is merely authorized to prosecute the suit to final judgment. His authority and control over the case is then ended. If the plaintiff is still a minor, none but the guardian of her person and estate, legally appointed by the Court of Equity, or the Court of Ordinary, is entitled to receive it. The circumstance that the father of the plaintiff was her prochein ami, will not alter the case. For although he was her natural guardian, yet that gave him no right to receive money to which she was entitled. Genet vs. Talmadge, 1 J. C. R. 3. But as the presiding Judge ruled that the plaintiff’s own receipt in the recovery could not be a discharge of the plaintiff’s right to recover damages in this case, and as that may have prevented the defendant from shewing a confiimation by the plaintiff, Elizabeth Stewart, after attaining to full age, or by her representatives since her death, the case must go back, on this, as well as the first question. The motion for a new trial is therefore granted.

Johnson and Harper, JJ., concurred.

In the case of Kip vs. Bringham, 6 J. R. 158; 7 Ib. 168, which was an action against the sheriff for the escape of a prisoner to whom the jail liberties had been granted, the sheriff gave notice of the suit to the prisoner’s securities, who with the sheriff defended it, and judgment was given against the sheriff. In an action by the sheriff, against the sureties on tire bond for his indemnity, the judgment was held conclusive evidence of the escape. In Carmack vs. Commonwealth, 5 Binney, 184, a judgment was obtained against a sheriff alone, without notice to his sureties. In a subsequent suit against the sheriff and his sureties jointly, this judgment was held inconclusive as to the amount of damages. In ejectment against a covenantee, the record of recovery is not conclusiue against the covenantor, if he had no notice of the ejectment. Leather vs. Poultney, 4 Binney, 356, but otherwise, if the covenantor had notice and took part in the trial. Bender vs. Fromberger, 4 Dallas, 436, note. In the case of Bond ads. Ward, 1 N. & M‘C. 201, it was held, that “where a recovery over is given by law, or secured by express contract, and the plaintiff relies upon the recovery against him as the sole and conclusive testimony of his right to recover over, notice of the first action is indispensably necessary.”

Por a clear and concise statement of the doctrine of ancient warranty, and more especially of the modern practice in the United States on that subject, see 4 Kent’s Com. 457.  