#### L. H. MILLER v. ABEL PITTS and T. L. EPLEY.

(Filed 25 May, 1910.)

Principal and Surety — Distiller's Bonds — Judgment in Federal Court —Certified Records — -Indebtedness—Evidence.

A duly and properly certified copy of the record of the United States District Court of a judgment had against a surety on* a distiller’s bond is prima facie or presumptive evidence of the stated indebtedness of the principal, in an action subsequently brought by the surety against his principal and cosurety thereon; and in the absence of evidence in rebuttal, when it is admitted that the plaintiff has paid the judgment, he may recover from the principal the entire debt which he has paid, or from the surety his ratable part, it appearing of record that there is no reál dis*630pute between the parties as to the truth of the matters set out in the record, if the judgment in the District Court is held to be evidence against the defendants.

Appeal from J. S. Adams, J., at January Term, 1910, of McDowell.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

Sinclair & Garitón for plaintiff.

W. T. Morgan and T. A. Morphew for defendants.

Walker, J.

This action was brought by tbe plaintiff, as a surety on tbe distiller’s bond of tbe defendant Abel Pitts, to recover. the amount which be was compelled to pay under a judgment recovered in tbe United States District Court for tbe Western District of North Carolina, against Pitts as principal and himself as surety, for $500, tbe amount or penalty of said bond. Tbe parties waived a trial by jury and agreed that tbe judge might find tbe facts, and it appears from bis findings that tbe bond was executed by Abel Pitts' as principal and tbe defendants Lee Miller and Thomas Epley as sureties. It further appears that an action was brought upon tbe said bond for a breach thereof by Pitts, which breach consists in bis failing to pay tbe taxes due from him by law, on 363 gallons of spirits, which be bad removed from tbe premises where said distillery was operated, without complying with tbe law by paying tbe taxes assessed against him. Issues were submitted to tbe jury at tbe trial of said case, which, with their answers, are as follows :

1. Did tbe defendants execute tbe bond sued on ? Answer: Yes‘

2. Did tbe defendants commit a breach of said bond? Answer : Yes. -

3. What amount of damages, if any, has the- plaintiff sustained on tbe bond sued on? Answer: $374.88, with 5. per cent penalty and interest 12 per cent from 1 October, 1896; $53.68, with 5 per cent penalty and interest 12 per cent from 1 March, 1896; $26.91, with 5 per cent penalty and interest 12 per cent from 1- March, 1897.

Tbe United States Court rendered judgment upon tbe ver-diet for an amount in excess of the penalty of tbe said bond. Execution was issued upon tbe said judgment, and tbe amount of tbe bond and tbe costs were paid by the plaintiff Miller. He ■brought tbis action to recover tbe said amount so paid by him, and offered in evidence a’ certified copy of the record in the District. Court, showing tbe amount of tbe recovery there against him and tbe payment of tbe same. He contended in tbe court *631below, and also in this Court, that this record, which showed a verdict and judgment against him for the amount which he was compelled to pay, under the execution thereafter issued upon the judgment, was, at least, prima facie evidence that Pitts, as principal, owed the amount,'and that he had been compelled to pay it by judicial proceedings in the. United States Court.' There was no controversy as to the fact that the plaintiff had paid the amount of the bond and the costs, but this fact was admitted. The court below ruled that the record of the proceedings in the United States Court was not prima facie evidence of the debt and the payment thereof by the plaintiff as a cosurety of the defendant Epley, and it was thereupon adjudged that the plaintiff take nothing by his action, and that the defendant Epley recover his costs. The plaintiff excepted to this judgment and appealed to .this Court.

We think his Honor erred in holding that the record of the United States District Court, which was duly and properly certified, was not prima facie evidence of the indebtedness of Pitts as principal, under 'the distiller’s bond, to the Government. The case in that court was tried upon issues submitted to the jury, who found the fact of indebtedness, and judgment was rendered thereon. The plaintiff was thereafter compelled, by the execution issued from that court, to pay the sum of $500, which was the penalty of the bond, and the costs of the suit. It is true that Epley, by his answer in this case, denies that there was any breach of the bond, but he offered no proof in the court below to that effect, and there is no suggestion by him or his counsel that^here was any collusion between the Government and the defendants in the- prosecution of the action in the United States Court upon the bond to recover the penalty thereof, or in obtaining, the judgment.

In 2.Brandt on Suretyship and Guaranty (3 Ed.), sec. 801, it is stated that “in an action for contribution between cosureties, the record of a judgment recovered by the creditor against the principal and one of the sureties, to which the other surety is not a party, is competent evidence to prove the rendition of such judgment by way of inducement to further evidence that the surety, against whom it was rendered, has paid it.” See, also, sec. 805, where it is said that “In an action of assumpsit by a surety against his principal, to recover indemnity for money paid for the latter by the former, the record of a judgment against the surety, although rendered without notice to the principal, is prima facie evidence of the sum due by the principal, of the obligation of the surety to pay, and of the assent of the principal to the payment.” Presler v. Stallworth, 37 Ala., 402.

*632Tbis Court, in Ármistead v. Harrimond, 11 N. C., 339, beld tbat a judgment against an administrator is evidence against bis surety of tbe existence of tbe debt upon wbicb tbe judgment was recovered, tbougb it was not at tbat time evidence against tbe surety tbat tbe administrator bad sufficient assets witb wbicb to discharge tbe indebtedness. Tbis case was cited witb approval in Brown v. Pike, 74 N. C., 531.

In consequence of prior decisions of tbis Court, tbe act of 1844, cb. 38, was passed, and in tbe construction given to tbat act in Brown v. Pike, supra,, tbe judgment was made evidence against tbe surety, botb as to tbe existence of tbe debt and of assets sufficient to pay it; but by tbe act of 1881, cb. 8, tbe Legislature amended tbe act of 1844, so as to make sucb a judgment only presumptive evidence against tbe sureties, whether they were parties to tbe action in wbicb tbe judgment was recovered against tbe principal or not. Revisal, sec. 285. We think, therefore, it is settled as a general principle of tbe law, tbat a judgment recovered against a surety is, at least, prima facie evidence, or presumptive evidence, of tbe debt in an action afterwards brought by him against bis principal or cosurety to be indemnified, provided tbat tbe payment by bim of tbe amount so recovered is either shown or admitted. Leak v. Covington, 99 N. C., 559. He recovers of tbe principal tbe entire debt wbicb be has paid, and of tbe surety bis ratable part. It was admittqfl in tbis ease tbat tbe principal, Abel Pitts, is insolvent.

It is true, tbe court ruled tbat tbe record of tbe United States District Court was not evidence against tbe defendant; but it is apparent, from tbe pleadings and findings of fact, tbat there is no real dispute' between the parties as to tbe truth of tbe matters set out in tbe record, if it is evidence against tbe defendant.

We, therefore, bold tbat there was error in tbe ruling of tbe court as to tbe effect of tbe record, and reverse tbe judgment. Tbe case will be remanded witb directions to enter a judgment for tbe plaintiff.

Reversed.