
    Thomas against Hubbell and others.
    A mere surety for the payment of a debt, without any agreement express or implied, to be bound by a suit between the principal parties, is, at common law, no more affected by its event if against him than a mere stranger. Except in cases where, upon the fair construction of the contract, the surety may be held to have to have undertaken to indemnify his principal against the result of a suit, or when he is made a privy to the suit, by notice and the opportunity to defend being given to him, a judgment against the principal is proof against the surety only of the fact of its recovery, and not that the facts in pais, against which the surety agreed to indemnify, were established in the litigation.
    The defendants were sureties in a bond to the sheriff that their principal, C. H., should “ well and faithfully in all things, perform and execute the duties of deputy sheriff, without fraud, deceit or oppression.” A judgment was recovered against the sheriff for the alleged misconduct of such deputy, in a suit of which such deputy-had notice, with a request to defend; biit his sureties had no notice. In an action upon the bond against the sureties, Reid, that they were at liberty to prove facts which would have established a good defence in the action against the sheriff.
    The cases of Bartlett v. Campbell (1 Wend., 50), and Westenelt v. Smith (2 Duer, 449), reviewed and explained.
    Action by the sheriff of Delaware against Hubbell, as principal and the other defendants, as his sureties in a bond, conditioned that Hubbell should “ well and faithfully, in all things, perform and execute the duties of deputy sheriff without fraud, deceit or oppression.” The breach alleged was that Hubbell, the deputy,levied an execution upon property of one Rowley, sufficient to pay the same, and that he.subsequently permitted Rowley to use and convert the property, by means whereof the plaintiff became liable for the amount of the execution to the plaintiffs therein; that the said plaintiffs brought their action against the sheriff, of which the defendants had notice, and recovered judgment therein, which the sheriff paid. The cause was tried before Mr. Justice Mason, at the Delaware circuit without a jury. The plaintiff proved the facts as above stated, except that notice of the action against him was shown to have been given to Hubbell, but not to his sureties. The judgment against the sheriff was proved under exception. The defendant offered to prove that none of the property levied upon as Rowley’s belonged to him. The evidence was excluded by the court and the defendant took an exception. Judgment was ordered for the plaintiff, which, upon appeal, was affirmed by the Supreme Court at general term, and the defendant appealed to this court.
    
      Amasa J. Parker, for the appellant.’
    
      H. Hogeboom, for the respondent.
   Johnson, J.

The defendants’ bond is upon condition, to be void, if Chester Hubbell shall, well and faithfully, in all things, perform and execute the duties of deputy sheriff of the county of Delaware, without fraud, deceit or oppression. The bond was given to the Sheriff upon Hubbell’s appointment as deputy, and its apparent object is to secure the sheriff on account of any malfeasance or nonfeasance of the deputy, in his office.

The sheriff was sued for Hubbell’s permitting chattels on which he, as deputy, had levied, to be taken out of his possession and disposed of. Of this suit, Hubbell had notice, but the sureties were not notified. A recovery was had against the- sheriff, the record of which was given in evidence in this case, under exception. It subsequently was offered to be proved that none of the property levied on belonged, at the time of the levy, to the defendant in the execution. Upon this offer the question arises whether under the circumstances, a breach of the condition of the bond, was conclusively established against the sureties in the bond, by the recovery against the sheriff, after notice of the suit and an opportunity to defend it, being given to Hubbell.

The general rule is certainly clear that none but parties or sureties are concluded by a judgment. If no notice had been given to Hubbell of the suit against the sheriff, there would have been no pretence for saying that he could be concluded by the recovery against the sheriff. The terms of the condition of this bond do not bring it within the class of cases, in which an indemnitor is concluded by the result of a suit against the person whom he has undertaken to indemnify, upon the ground that such is the fair interpretation of the terms of the contract. This condition is only that he will do his duty as deputy sheriff. In the class of cases alluded to, the contract of indemnity is held to stipulate for the result of a litigation to which the indemnitor is not a party, and to make his liability depend merely upon that result. The case of Douglass v. Howland (24 Wend., 35), fully discusses this question, and shows that the cases which have applied it are not departures from or exceptions, to the general rule that a judgment concludes only parties and privies, but do not fall within that rule at all, being dependent only upon the principle that one may contract to to be answerable to another upon such lawful conditions as he pleases. Lee v. Clark (1 Hill, 56), and Duffield v. Scott (3, T. R., 374), stand upon that ground. Raplye v. Prince (4 Hill, 119), is another instance of the application of the same principle, where the court say “ when one covenants for the results or consequences of a suit between other parties, the decree or judgment in such suit is evidence against him, although he was not a party.”

It is, however, well settled, where parties sustain the relation which existed between the parties to this suit, that the party entitled to be indemnified may throw upon the indemnitors the burthen and risk of the primary litigation, by giving to them the opportunity of defending the original suit. (Kip v. Brigham, 6 John., 158.) It then becomes the defence of the indemnitors, and they are concluded by its results, at least in the absence of fraud or collusion between the prosecuting party and him whom they are bound to defend. In this case notice was given to Hubbell, but not to the other obligors, and the question is whether they are concluded by the former recovery.

The only decided cases in this state, which seem to favor the view that they are liable, is Bartlett v. Campbell (1 Wend., 50) and Westervelt v. Smith (2 Duer, 449). In Bartlett v. Campbell, notice of the previous suit had been given to the principal indemnitor, but not r-to the surety, and the court said that, for this defect, the plaintiff must be nonsuited; but they did not grant the nonsuit. The -plaintiff gave other evidence, and the defendant was allowed to contest the question of fact on which the original recovery was based, and upon that question the jury found' for the defendant. On writ of error to the Common Pleas, the question really presented to the Supreme Court was, whether the original recovery was conclusive upon the party who had no notice. For, admitting the record to have been prima facie evidence, the defendant had overthrown it by obtaining a' verdict against the fact on which it was founded. The case was considered by the court upon a concession of the defendant’s counsel that if the form of the suit had been upon the contract as joint, notice to one of the indemnitors would have sufficed; and the conclusion of the court is worked out upon that assumption. This case can therefore scarcely be regarded as an authority to sustain the judgment now under review; and in principle it is in direct conflict with the rule as to the effect of a judgment against- joint debtors, where one only is served with process and appears in the suit.

The case of Westervelt v. Smith was reviewed in this court, and put upon the ground that it fell within the class of cases before alluded to, in which one has stipulated to be bound by the event of a suit between strangers.

There is therefore no reason why this case, in which the language of the condition admits of no similar construction, should be taken out of the general rule which declares the effect of judgments as to strangers, that they conclusively prove rent ipsam and nothing else.

The judgment should be reversed and a new trial ordered.

Comstock, Selden, Denio and Paige, Js., concurred; Bowen and Shankland, Js., were for affirmance.

Judgment reversed and new trial ordered.  