Jacob Emery vs. Jeremiah Goodwin, 13 Me. 14

Weston C. J. The plaintiff has filed a demurrer to the defendant’s plea ; and the question is, as to the sufficiency of the plea, in relation to that part of the bill, to which it was intended to apply. A plea may be interposed to part of the bill; and it will be sustained, so far as it may be a good bar to any of its material allegations.

It is insisted, that the trust charged in the bill, arising from the sale, purchase, and resale of certain estates belonging to the plaintiff, by the defendant, bis guardian, has been once before a court of competent jurisdiction, that it has passed in rem judicatam, and ought not to be again opened. The former suit was brought in this court, for the benefit of the plaintiff, in the name of the Judge of Probate, for this county, on a bond given to tlio Judge by the defendant, with sureties, September 7th, 1829, conditioned for the faithful performance of his duties, as guardian to the plaintiff.

As the law then stood, the defendant was to give the same bond, for the faithful discharge of his trust, as guardians appointed for lunatics, idiots, and persons non compos. In the revision of the laws, a requirement to this effect of such guardians had been omitted; and it was not imposed by statute, until after the date of the bond under consideration.

But although the reference in the statute then afforded no light, in relation to the bond to be given by guardians to spendthrifts, it wras manifestly the will of the legislature, that such a bond, should be taken from every such guardian; and it was to be for the faithful performance of the trust confided to him. If the Judge of Probate, in the exercise of bis jurisdiction, has no right to require, or to receive a bond, except where it is prescribed by statute, about which we give no opinion, it may be strongly urged, that the bond in question was thus prescribed.

But for the purposes of this investigation, it is sufficient to say, that the bond was given, that the plaintiff sought his remedy under it, that no objection was taken to its validity; and that a suit upon it was sustained in the Supreme Judicial Court. Wo are not called upon, sitting as a court of equity, to examine into the regularity of these proceedings. The cases of Baker v. Morgan, 2 Dow. 526, and of Shottenkirk v. Wheeler, 3 Johns. Ch. 275, very strongly point out the impropriety of such an interference.

If the court had jurisdiction of the bond, which they sustained, and which cannot be questioned collaterally under this bill, did it involve the trust, upon which the defendant is now sought to be charged? We are of opinion, that it did expressly and directly. The trust charged is an official trust, the faithful fulfilment, of which constituted the principal condition of the bond.

The brief statement of the plaintiff in that suit, which by our law is a sub» stitute for special pleading, charges the defendant generally, with unfaithfulness in the discharge of his trust, as guardian, and with negligent, and fraudulent management of the property of his ward. He then proceeds to point out certain specifications. Of what ? Unfaithfulness in the trust, is as much involved in them, as negligent, and fraudulent management. If either was made out, the condition was broken. Among the specifications, is the very ground upon which a trust in favor of the plaintiff is based in the bill.

It is contended, that the failure of the plaintiff to recover in the former suit may have been, because the defendant might not have been cited to account in the probate office. An administrator is required by law to give bond, conditioned to return an inventory of the estate within three months, and to render an account of his administration within one year. It has been held, that before he can be charged upon the bond, for a failure of these duties, he must be first cited to return an inventory, or to account in the probate office. Nelson v. Jaques, 1 Greenl. 138; Potter v. Titcomb, 7 Greenl. 302.

These are positive requirements, in regard to which the place where, and the tribunal before which the business is to be transacted, is the court of probate. The guardian has duties to perform, in the comfortable maintenance of the ward, and his family ; in the collection, and payment of his debts, and in the management, and preservation of his property. And although he acts under the supervision of the court, by which he is appointed, and may doubtless be cited to give an account of his trust; yet this is not a duty directly and affirmatively prescribed by statute, as it is in the case of administrators.

The duty of a guardian, imposed by statute, and secured by bond, does not depend upon the injunction of the probate court. He could not be cited to appear there, and fulfil his trust. That with the exception of the return of an inventory, is to be performed elsewhere. And if not performed, the condition of his bond is broken. We are not satisfied, that before an action can be maintained upon a guardian’s bond, he must be first called upon to appear in the probate court, and show how he has fulfilled his duties. And if it were necessary, no such point was raised between the parties.

No averment to this effect was necessary in the declaration, winch was debt on bond, The defendant and his sureties did not place their defence upon this ground, in their brief statement; but relied upon a general performance of the condition of their bond. The plaintiff iu his counter statement pointed out certain breaches, upon which the parties were at issue. The jury found lor the defendant.

If they had found for the plaintiff; and the defendant had thereupon insisted, that he was not charged by tlie verdict, because there was no proof, that ho had been cited before the probate court, it might well have been replied, that ho put no such point in issue. That he must bo regarded, as having waived the objection. That he could not be permitted to take the chance of a verdict in his favor, and then interpose a ground of defence, which if earlier made might have been removed by competent proof.

But as has been before intimated, whether that suit was regularly conducted, or not, it is not our present business to determine. It sufficiently appears, that tire jury have found, that there was no breach of the condition of the bond. But assuming, that, the jury responded only to the ground of fraud, made by the plaintiff in his brief statement, as his counsel insist, and negatived the breadles assigned, because not satisfied that fraud existed ; it appears to us, that the plaintiff might, and should at the time, have protested against so limited a finding.

Or if that was right under his brief statement, it was his own fault thus to have narrowed his ground of action. The bond was to secure the performance of the defendant’s trust. The plaintiff elected to resort to that remedy. The trust was directly open to inquiry ; but fraud only, as it was evidence of a breach of trust. Nor can wc entertain a doubt that the whole subject matter, the bond with its condition, was within the jurisdiction of the court in that suit. To enforce the faithful performance of the trust, was the very object of the bond.

A suit rightfully brought upon that bond, carried with it necessarily a right to inquire as to the trust. The one was inseparable from the other. It is an elementary principle, of high importance in the administration of justice, that the judgment or decree of a court of competent jurisdiction is final, as to the subject matter determined, and that it cannot be opened, before any court of concurrent jurisdiction. The authorities go further; and maintain the position, that the parties are concluded, as to whatever might have been litigated or decided in a former suit. Marriot v. Hampton, 1 T. R. 269. Le Guen v.

Governeur et al., 1 Johns. Cases, 436. Kent J. in the last case says, he knows but two exceptions to this rule ; the case of mutual dealings, where the defendant, who omits to set off his counter demand, may bring a cross action ; and the case of ejectment, according to the English and New York practice, where the defendant, neglecting to bring forward his title, is not precluded by a recovery against him from availing himself of it in a new suit. The principle is, that every man is bound to take care of his rights, and to enforce them, when opportunity is afforded him. In Bateman v.

Willoe, 1 Schoales & Lefroy, 201, Lord Chancellor Redesdale says, “ the inattention of parties in a court of law, can scarcely be made a subject for the interference of a court of equity ; there may be cases cognizable at law, and also in equity, and of which cognizance cannot be effectually taken at law, and therefore equity does sometimes interfere; as in cases of complicated accounts, where the party has not made defence, because it was impossible for him to do it effectually at law ; so where a verdict has been obtained by fraud, or where a party has possessed himself improperly of something, by means of which he has an unconscientious advantage at law, which equity will either put out of the way, or restrain him from using; but 'without circumstances of that kind, I do not know that equity ever does interfere to grant a trial of a matter, which liasNlready been discussed in a court of law, a matter capable of being discussed there, and over which the court of law had full jurisdiction. “In Simpson v.

Hart, 1 Johns. Ch. 91, Chancellor Kent says, he knows of no modern case, where a bill has been sustained upon a point, which had been before a court of law of competent authority, except “ upon some new matter of equity, not arising in the former case, or for some relief, to which the powers of the court of law were not fully and effectually adequate.” The foregoing are the principal cases, cited for the defendant upon this point. Others to the same effect have been also cited ; and they wight he further extended. In the opinion of this Court, they apply with great force to the case before us.

First, because the trust, sought to be enforced in the bill, appears to us to be involved in the former issue. Secondly, if it was not, it was directly within the condition of the bond, and might, and should have been distinctly presented. Thirdly, it W'as a trust, necessarily within the jurisdiction of the court, entertaining that suit. And lastly, the facts, from which it arises, were then known and set forth, in the plaintintiff’s brief statement. The demurrer, to the defendant’s plea in bar, is accordingly overruled.