
    Sturges against Beach and others, Executors of Norton.
    
    THIS was a bill in chancery, stating, that Birdsey Norton, Esq. and John C. Bush were, from the first of July 1808 to the 27th of May 1810, and long afterwards, merchants in company, under the firm of Norton & Bush, and during that time, the plaintiff transacted business for them in the United States, and in foreign countries ; that in the course of such business, the plaintiff purchased for said Norton & Bush, and sent to them, diverse vessels, goods, wares and merchandize, and remitted to them large sums in bills of exchange, bank checks, and cash, which were received and disposed of by them, to account for the same to the plaintiff ; that said Norton & Bush, being greatly in arrear, and refusing to render their account, the plaintiff, in April 1812, after the death of Norton, commenced his action of account at law against Bush, as surviving partner, and after an appearance on the part of Bush, and a hearing before auditors, recovered final judgment against him, in the superior court, for the sum of 3996 dollars 66 cents, and costs of suit; that before such judgment was rendered, Bush became an utter bankrupt, and absconded ; that Norton at his decease, owned a large estate, which has since gone into the hands of the defendants, his executors, and is liable in equity to the payment of said judgment; that besides this, Bush, before he absconded, made over to the defendants all the property in his possession, and all the books, papers and credits of the firm, for the benefit of Norton's estate, and to discharge the debts of the firm ; and that the defendants, as executors of Norton, had notice of said action against Bush, during the pendency thereof, and employed counsel to defend, and have since had notice of the judgment.
    
      On a bill in chancery by C., claiming to b a creditor of the late partnership of A. and B., dissolved by the death of A., a ainst the executors of A., stating the insolvency of B. the surviving partner, and seeking satisfaction of his claims out of A.’s estate, the plaintiff offered in evidence a judgment in his favour in an action at law against B. as surviving partner: Held that such judgment, though admissible to prove the simple fact of a recovery against B., was no evidence of the existence of a debt against the partnership so as to charge the defendants.
    
      Hartford,
    June, 1816.
    The plaintiff therefore prayed, that as he was remediless at law, chancery would compel the defendants to make payment.
    On a hearing before the court, the plaintiff offered in evidence an exemplification of the judgment stated in the bill; to the admission of which the defendants objected. By agreement of parties, the cause was thereupon continued to the next term, that the question of law as to the admissibility of this evidence, might be argued, in the meantime, before the nine Judges.
    
      Sherman and T. S. Williams, for the plaintiffs,
    contended, that Bush being the representative of the firm, a judgment against him, in that capacity, must be, in effect, a judgment against the firm. It is absurd to say, that the estate of a deceased partner, which is admitted to be subject to the liabilities of the partnership, is not bound by a judgment against the legal representative of the partnership. If Bush had satisfied the judgment in this case, the executors of Norton would be liable to him ; and the judgment thus satisfied would be a sufficient voucher for him against them. If the plaintiffs had failed of a recovery against Bush, it is clear that they could not come against the executors of Norton. Why ? Manifestly, because the executors of Norton could plead the judgment in the suit against Bush in bar. They stand in the light of privies to that judgment.
    
      Daggett and M. Smith, for the defendants,
    relied upon the established rule of law, that a judgment is evidence only against the parties to the suit, or others standing in the relation of privies. Peake’s Ev. 38. 68. (3d edit.) The present defendants are in no sense parties to the judgment against Bush. They have had no day in court ; no opportunity to examine witnesses, or to defend themselves, or to review the judgment. Nor are they privies in relation to it. They are not privies in estate, or in blood, or in tenure. Are they privies in representation ? They are the personal representatives of Norton, but are strangers to the partnership. These are the only privities known in law. Beverley’s case, 4 Co. 123. b. 124. a. Co. Litt. 271. a. If the judgment against Bush is binding upon the representatives of 
      Norton, why does not the plaintiff, instead of setting forth the original cause of action, and giving a history of the proceedings, bring an action on the judgment in the simplest manner? The principle contended for by the plaintiffs is also opposed to sound policy ; for it would open a door for collusion between the creditors of the partnership (or those claiming to be such) and the surviving partner, to the prejudice of the estate of the deceased partner.
   Swift, Ch. J.

The judgment in the case of the plaintiff against Bush is proper evidence to prove the fact that a recovery was had against him ; but it is no proof of the existence of the debt so as to charge the executors of Norton, the deceased partner.

It is a well known principle, that judgments are binding only between parties and privies ; privies in blood, as heirs ; and privies in law, as executors and administrators ; and that no man is to be concluded by a judgment when he was not a party, or privy, and had no opportunity to be heard. In the present case, there is no privity between Bush and the executors of Norton. By the death of Norton, the partnership was dissolved ; Bush constituted the company ; but he could do no act by which he could create any obligation or liability on the executors of Norton after his death. The copartnership was to be settled according to the contracts existing at that time. Bush was liable at law for all the debts ; and the creditors, if he was able to pay, could not call on the representatives of Norton. It is only on the failure of Bush, that the estate of Norton can be rendered liable in equity. It is like a new claim originating against the representatives of Norton, and it must be supported like any other claim. Should a contrary principle be adopted, it might be productive of great inconvenience and injustice. There can be no occasion to resort to the estate of the deceased partner, unless the surviving partner is insolvent ; and if a judgment against him is sufficient evidence of a debt against the representatives of the deceased partner, then this mode of making out the claim would be usually adopted, and many frauds and collusions might be practised, which it would be very difficult to detect and expose. It may be in the power of a bankrupt to admit and establish an unfounded claim against a man of property.

I think this judgment is no evidence of a debt against the defendants.

In this opinion the other Judges concurred, except Gould, J. who gave no opinion, having been of counsel in the cause.  