#### JOSEPH HARDY & AL. vs. JOHN WILLIAMS, ADM'R.

A. and B. being infants and tenants in common of a tract of land, C. their mother, who was the administratrix of their deceased father, rented out the land to D. who entered into possession of it. The infants afterwards brought a bill in Equity against C. for an account of their estate and charged her with having acted as their guardian in renting out the land, and obtained a decree for the amount ascertained to be due, including the rent; but it did not appear that the decree had been satisfied. Held that D. not being a party to these proceedings in Equity, nor a privy to either of the parties, could not avail himself of them, so as to prevent his being sued asa trespasser.

The case of Hatdy v Williams, 0 Ire. 177, cited and approved.

*' Appeal from the Superior Court of Law of Bertie County, at the Fall Term 1850, his Honor Judge Cald* well presiding.

This was an action of trespass quare clausum fregiL It was in evidence, that the plaintiffs were seised and in possession of the locus in quo in the year 1841, as the heirs at law of their father, Edward Hardy ; that they were infants and without a guardian : that Joseph Hardy, one of the plaintiffs, arrived at full age twelve months before the institution of this action ; and the other plaintiff is still an infant. It was further in evidence, that Mrs. Hardy was the administratrix of said Edward Hardy; and that one William Cherry, an agent of Mrs. Hardy, rented out at public auction the locus in quo, and one Holley bid off the same and assigned his bid to the intestate of the defendant and the said William W. Cherry; and that the defendant’s intestate and the said W. WJ *500Cherry entered on the premises, and, during the year 1841, cultivated the lands and used the fishery attached there* to. It was in evidence further, that, at the Fall Term 1845 of Bertie Court of Equity, the plaintiffs, by their guardian, Humphry H. Hard}',filed their bill against Mrs. Hardy, the administratrix of the said Edward Hardy, for an account and settlement of the estate of the said Edward, in which they claimed for the rents of land received by the administratrix ; and the administratrix, in her answer to the said bill, admitted, tha'„ she appointed by parol the said Wiliam W. Cherry her agent for the set. tlement of the said estate, and that the said Cherry had rented out the lands of the plaintiffs. An account of the said estate was taken, in which the administratrix was charged with the rents of other lands belonging to the plaintiffs, and also with the rent of the locus in quo for the year 1S41, at the sum bid for the same by the said Holley; and, at the Fall Term 1S47 of the said Court of Equity, a decree was entered in favor of the plaintiffs against the administratrix for the balance due, as appearing upon the said account; and in which decree it is declared, that the administratrix had received the rents of lands belonging to the plaintiffs, for which she was liable to account It did not otherwise appear, that the Said Holley or the intestate of the defendant, or the said Cherry had paid the rent of the locus in quo to Mrs. Hardy ; and there was no evidence that the said decree had been paid by the administratrix.

The Court charged, that, as the plaintiffs, by their guar-, dian, and under the sanction of a Court of Equity, had elected to treat their mother as guardian and charged her with the rent of the land in question, they could not now convert the defendant’s intestate into a wrong-doer

The jury returned a verdict for the defendant. Judgment for the defendant, from which the plaintiffs appealed to the Supreme Court.

*501 Biggs, for the plaintiffs.

W, TV. II. Smith, for the defendant.

Pearson, J.

The Court charged, “that as the plaintiffs by their guardian, and under the sanction of a Court of Equity, had elected to treat their mother as guardian and charged her with the rent of the land, they could not now convert the defendant’s intestate into a wrong doer.”— 1 here is error.

In Hardy v. Williams, 9 Ire. 177, the same facts were presented between the same párties, in an action on the case in assumpsit for the rent of the land, and it was held that the action could not be sustained, because there was no privity between the plaintiffs, and the defendant’s intestate, and, “that, although it was at the election of the plaintiffs, to treat their mother as a wrong doer, or as their agent, they were not at liberty, by supposing her to be an agent, thereby to affect the rights of third persons, and make a privity, where none before existed,”

This was a decision as to the legal effect of the pro* .ceedings and decree in Equity, by the plaintiffs against Mrs. Hardy, in which she was charged with the rent of the land, and it was held that the proceedings and decree did not have the legal effect of creating a privity of contract between the plaintiffs and the defendant’s intestate» because he was a third person and his rights could not be affected. For the very same reason his liability cannot be affected. When an attempt was made to charge him as a privy, he escaped upon the ground, that he was a third person and not bound by those proceedings, and now, that an attempt is made to charge him as a wrong doer, he cannot shift his ground, and involve the aid of those proceedings to relieve him from the position of a wrongdoer, by converting him into a privy. Estoppels must be.mutual, and who is not bound by them cannot take advantage of themi

*502If the decree had been satisfied, then the defendant could have availed himself of it, not as an estoppel, but, a satisfaction of the cause of action.

Per Curiam. Judgment reversed and venire de novo.