
    Samuel E. Kenner, and Others v. Davis Caldwell, and Others.
    Equity will not relieve against a judgment at law, upon a guardianship bond, against the guardian and sureties, for the amount of a decree by the ordinary against the guardian, on the ground that the sureties were not cited before the ordinary, when the decree was made : neither is it a ground for relief, that a gift by the guardian to the wards, previous to the decree, was intended, and accepted by the wards, as a satisfaction of their demands; nor that the decree was, in part, for money which the guardian received as administratrix. If these defences could have availed at law, the parties were bound to have made them there; and if they could not, then they furnish no ground for comiDg into equity, vide M’Clure v. Miller, ante, p. 107.
    This was a bill to be relieved against a judgment at law upon an administration bond; and was heard at Newberry, in July, 188^’ by Harper, Chancellor, from whose decree the case will be felly understood.
    Harper, Ch. The complainant, Mrs. Nancy Henderson, who was a^so ^be administratrix of her deceased husband, Nathaniel Henderson, was, in February, 1820, appointed by the ordinary for Newberry district, the guardian of her infant son, William D. Henderson, and entered into bond for the faithful discharge of the duties of her appointment, with the other complainants, Samuel E. Kenner, and John Hancock, as sureties. She received, as guardian, a sum of money, being her said son’s distributive share of his father’s estate. On the 8th May, 1820, Mrs. Henderson executed a deed, by which, in consideration of love and affection, “ and also for divers good considerations,” she conveyed to her said son, and to her daughter, Jemima Henderson, whose distributive share of her father’s estate she had also received, a tract of land, a female slave, and a bed and furniture, being her whole property, derived from her husband’s estate. In a subsequent part of the deed is added, “ I do freely and voluntarily give, as aforesaid,” the property in question to her children, which she binds herself to warrant. The bill charges that this conveyance was made and intended as a full satisfaction to her said children, for the money she had received on account of their shares of their father’s estate, and was so accepted by Jemima, who was of age ; and that William, who was under age, also accepted, and confirmed the transaction, when he came of age.
    About the time of his coming of age, William D. Henderson removed to the State of Georgia, and died, leaving a wife. Administration of his goods and chattels, rights and credits, within this State, was granted to the defendant, Davis Caldwell. In 1829, on the petition of the said Davis Caldwell, the said Nancy Henderson was cited to account before the ordinary, who made up an account against her. The bill states, that in this account, the ordinary “ charges her, as guardian, with having received five hundred and ninety-four dollars and sixty-five cents, principal and interest: and charges the said Nancy with having received forty-two dollars ninety-four and one half cents, as well as six dollars seventy-six cents, interest thereon, as administratrix of the estate of the aforesaid Nathaniel Henderson, deceased; and also the sum of nineteen dollars ninety-six cents, costs, which accrued on the settlement of the said administration, and charged the complainants, Samuel E. Kenner, and John Hancock, as sureties to the guardianship bond aforesaid, with the payment thereof: which last items, they submit, are not chargeable to them, but if to any person, to the sureties of the administration bond.” Suit was brought on the guardianship bond, and judgment recovered against the complainants, in the sura of six hundred and twenty-six dollars and ninety-two cents, besides interest, and costs.
    The complainants Kenner, and Hancock, further state, that they were not cited before the ordinary when the account against Mrs. Henderson was taken, and claim that they ought not to be bound by the account. They state, further, “ that they were entirely ignorant of the existence of the aforesaid deed from the said Nancy Henderson, to the said William D. Henderson, or the contents thereof, or the objects for which the same was executed, which was executed a few days after they became the sureties of the said Nancy, as aforesaid.”
    The bill prays, that the complainants may be relieved from so much of the judgment as is founded oa the charges made against Mrs. Henderson, as administratrix ; that the conveyance to Jemima, and William D. Henderson, may be decreed to have been in full satisfaction of William’s claim on his mother as guardian ; and that defendants may be injoined from enforcing the judgment.
    The bill originally contained another charge, to wit: that if the conveyance from Mrs. Henderson to her children, was not held to be in satisfaction of William’s claim on her as guardian, it must be considered as voluntary, as to him, and fraudulent as to her sureties; complainants, Kenner and Hancock, alleging, that they were no parties to the said deed. As the proper parties, however, were not made for the trial of this question, so much of the bill as relates to this charge, was struck out by the complainants.
    The defendant, Davis Caldwell, in his answer, relies, by way of pleading, on the decree of the Court of Ordinary, and the judgment of the Court of Law, in bar to the relief claimed by the complainants, and pleads to the jurisdiction of the Court. The matter of these pleas is to be examined.
    The complainants, Kenner, and Hancock, allege that they were not cited to attend before the ordinary. In the case of Lyles v. Caldwell and Cowley, 3 M’C. 225, the Court of Appeals decided, that it was not necessary to cite the sureties to an administration bond before the ordinary ; and that the decree against the principal was, notwithstanding, evidence against the sureties. So in Glenn v. Conner, State Rep. Equity, 267, where the sureties were made parties to a bill against an administrator, for an account, the bill was dismissed as against them. The principle of these cases seems to apply to the present. The complainants appeas to go on a notion of this sort; that in general a person ought not t0 be bound by a judgment in a cause to which he was not a party, but that they were bound, in the Court of Law, by the or. dinary’s decree, and could not impugn it, and that this furnishes a ground for coming into Equity. With respect to the charges which are alleged to have been made against Mrs. Henderson, as administratrix, the case of Cureton v. Shelton, 3 M’C. 412, seems to be an authority, that the complainants might have gone into their defence in the Court of Law. In that case, a decree in equity against an administrator, founded partly on demands against him personally, and partly in his representative character, was given in evidence in an action against the sureties; and the Court of Appeals held, that it was competent for him to go into the decree, for the purpose of showing how much of the decree was founded on demands against the administrator, in his representative character, for which alone the surety was responsible. This seems to be the same case. Complainants allege, that certain charges were made against Mrs. Henderson, as administratrix. Perhaps it may be questioned, whether complainants could not have availed themselves in the Court of Law, even of the alleged satisfac. tion. In Lyles v. Caldwell, (supra) it is observed, that the decree of the ordinary is evidence against the sureties, to shew the amount of damages, and is, at least, prima facie evidence. Might not the alleged satisfaction have been given in evidence, if not in bar of the action, to reduce the damages to mere nominal ones Í Now, if these defences might have been offered, the settled rule is, that the parties were bound to make them, and cannot come into equity to be relieved from the judgment. “ It is a settled principle, that a party will not be aided after a trial at law, unless he can impeach the ver. diet, or report, by facts, or on grounds, of which he could not have availed himself, or was prevented from doing it by fraud, or acci. dent, or the act of the opposite party, unmixed with negligence, or fault, on his part.” Per Chancellor Kent, in Duncan v. Lyon, 3 Johns. C. R. 356. See also, Wintbrop, Todd, and Winthrop v. Survivors of Lane, 3 Desaus. 324, 325, and note; and Le Guen v. Gouverneur, and Kemble, 1 Johns. Cas. 436. It is alleged in the bill, to be sure, that complainants were ignorant of the existence of the deed, but the allegation is too loose, and seems to be evasive. It is not alleged, that they were ignorant at the time of the trial; nor is the ground taken in the bill, that they were prevented by this ig. norance from making their defence. It may mean, as well, that they were ignorant at the time the deed was executed; and so I am inclined to understand them, from its being elsewhere alleged in the bill, that they were not parties, or privies to the deed : nor was this ground urged at the hearing.
    But if the complainants could not have been permitted to make their defence at law, it does not follow that they may come into equity. If they could not enter into the defence, it must hav6 been on the ground, that the decree of the ordinary against their principal was binding, and conclusive, on them, although they were not parties before him. But if it be thus at law, I know of no reason, or principle, on which it is less binding and conclusive in equity, unless fraud, or collusion were alleged. It is observed by Chancellor Kent, in King v. Baldwin, 2 Johns. C. R, 557, referring to The Peoples. Jansen, 7 Johns. 332, “that there is nothing in the nature of a defence by a surety to make it peculiarly a subject of equity jurisdiction ; and that whatever would exonerate the surety in one Court, ought also in the other.” In the case of Foster v. Wood, 6 Johns. C. R. 87, a party against whom a judgment at law had been recovered, made a payment of seventy-six dollars on it. He was afterwards sued on the judgment, arrested, and gave bail; and on the trial neglected to prove the payment, and a second judgment was recovered for the whole amount of the original judg. ment. Suit was then brought against the bail, and judgment to the same amount recovered. On a bill filed by the bail, and by persons to whom he had sold lands, bound by the judgment against him, it was held that no relief could be had in equity. Now, I take it to be pretty clear, that in this case the judgment against the principal debtor was conclusive against the bail, and that he could not have defended himself in the suit, on the recognizance, although the Chancellor spoke as if he might have been guilty of neglect in not defending himself at law. But whether he could, or could not, there was no ground for coming into equity.
    It is ordered, and decreed, that the bill be dismissed, but without costs.
    The complainants appealed, and now moved that the decree might be reversed, and the relief prayed by the bill granted.
    Caldwell, for the motion.
   Johnson, J.

Per Curiam,. This Court concurs with the Chan, cellor, for the reasons assigned by him. The motion to reverse hie decree is, therefore, dismissed.

Decree affirmed.  