Ham v. Ayres

22 N.H. 412

• Court: Superior Court of New Hampshire
• Decided: July 15, 1851
• Status: Published

Opinion

Gilchrist, O. J.

The defendant was surety with Oliver Ham upon the administration bond of Daniel Ham, the administrator of George Ham. The defendant was also one of the executors of the will of Oliver Ham, who therein directed the balance of certain property to be paid to his mother, the plaintiff. This balance amounted to the sum of $151.70.

Daniel Ham died, and the defendant was appointed administrator de bonis non of the estate of George Ham.

In the defendant’s account, as executor of the will of Oliver Ham, the executors credited themselves under the date of November, 1838, with the balance paid the plaintiff, $151.70.

On the 13th of November, 1839, the defendant settled his account as administrator de bonis non of the estate of George Ham. He now produces this account in evidence, and it appears from it that there was in the hands of Daniel Ham, the sum of $194.08. The entry was thus, “ Balance in the hands of the executor, at his decease, $194.08. This is the only evidence of the balance.

The defendant shows, that he, as one of the sureties of Daniel Ham, has paid more than the sum of $194,08.

The balance of $151.70 was paid to the plaintiff, by the defendant’s giving her certain notes therefor, on which this suit is brought, and he claims the right to set off one half the sum of $194.08, inasmuch as Oliver Ham, the plaintiff’s testator, was liable for one half of it.

The decree of the Court of Probate, on the account of the defendant as administrator de bonis non, binds parties and privies like any other judgment. It is now offered as evidence that Daniel Ham, on whose bond Oliver and the defendant were co-sureties, had in his hands the sum of $194.08. But the plaintiff was not a party nor privy to this settlement, was not notified, and had no opportunity to appear, and as to her it is res inter alios acta. It consequently is not admissible in evidence against her.

If the defendant could prove by competent evidence, that there was in the hands of Daniel Ham, for whom he was co-surety with Oliver, a balance which Oliver was bound to pay, and which he had paid himself, the question then might perhaps arise, whether having paid a legacy, supposing there was estate, when in fact there was none, an action would or would not lie to recover it back.

But upon the present facts, .the defendant cannot set off the sum of $97.04, one half the sum of $194.08, and upon the report there must be

Judgment for the plaintiff'.