Opinion
03-24-1814
Buford v. Buford
Wickham for the appellant. Wirt for the appellee.
Argued January 6, 1814
In an action of assumpist, in behalf of William Buford, (who sued for the benefit of John P. Patrick,) against Henry Buford, the declaration contained a general count for money paid and advanced by the plaintiff for the defendant; another general count for money had and received by the defendant for the use of the plaintiff; and a special count, stating, that " whereas, also, the said defendant was jointly bound with the plaintiff as security for James Buford to Isham Talbott, the said Isham Talbott had recovered two judgments on the bonds given jointly as aforesaid, in the District Court of the state of Kentucky, held at Danville, against the said James Buford and the plaintiff, whereupon the said plaintiff, in part discharge thereof, (the said James Buford then and there still being insolvent,) did pay to the said Isham Talbott the sum of 1333l.; whereby the said defendant became liable to pay to the said plaintiff the one half of the amount so as aforesaid paid, to wit, one other sum of 666l. 10s. 0d.; and being so liable, he assumed, & c. nevertheless the said defendant refused, & c."
Issue was joined on the plea of non assumpsit. On the trial of the cause, the plaintiff offered in evidence the records of the two judgments rendered in the state of Kentucky; which the defendant admitted to be duly authenticated; " but to the admission of which, as evidence, he objected, agreeing that, if the court should be of opinion that they were admissible, the copies of the bonds therein recited should be of as much efficacy to the plaintiff, as if the originals were produced, and proven to have been executed by the defendant: but the court overruled the objection, and instructed the jury, that the aforesaid records were conclusive evidence, between the parties in this suit, as to the amount recovered, and the sum that the plaintiff in this cause was bound to pay Isham Talbott, the plaintiff in the suits referred to in the said records; and that the defendant should not be at liberty to prove any circumstances to impeach said judgments, except that they were obtained by fraud; and this he must prove expressly. The defendant also offered to prove, that Isham Talbott, the plaintiff in the said records, and William and James Buford the defendants, in the year 1796, submitted to arbitrators all their causes of difference, both of law and equity, (which embraced the causes of controversy in the records aforesaid,) who awarded that the said James and William Buford should pay to the said Talbott, 649l. 18s. 0d. in full of all accounts; which the said Talbott was willing to receive; but the said James and William taking exceptions to the same, finally had it set aside; and, in the mean time, James Buford became insolvent; which proof the court would not permit the defendant to produce:" to which opinion the defendant filed exceptions.
The jury found a verdict for the plaintiff, assessing his damages to 666l. 10s. 0d. with legal interest thereon, from the 20th day of July, 1800, till paid, besides his costs: and judgment was entered accordingly; from which the defendant appealed.
Wickham for the appellant.
Wirt for the appellee.
OPINION
Judge Roane.
The court is of opinion that there is no error in the opinion of the Superior Court, admitting the judgments in the bill of exceptions, to be exhibited as conclusive evidence to shew the amount recovered against the appellee by Isham Talbott, and the amount he was thereby compellable to pay: and, not understanding that court as prohibiting evidence on part of the appellant, tending to reduce the sum claimed against him in consequence of such judgment, or to shew that the same was fraudulently or collusively obtained; and being also of opinion that, as the award, mentioned in the latter part of the bill of exceptions, is stated to have been set aside by the appellee and James Buford, on exceptions taken thereto, and the record thereof not having been exhibited, which is supposed to have been the only competent evidence; the court, thus understanding the opinion and judgment of the Superior Court aforesaid, affirms the same.