
    JACOB THRASHER vs. DAVID HAINES, jun.
    
      A. and B. haying a controversy respecting certain accounts between them, agreed to refer the same to arbitrators; C. appeared before the arbitrators at the hearing as B.’s agent, and assisted in managing the case. The arbitrators made a report in favor of A., who procured a judgment upon the same report, sued out an execution, and caused the execution to be extended upon land which B. had conveyed to C, and then brought a writ of entry against C. to recover the land : it was held, that C. was not estopped by the judgment to shew that there was nothing due from B. to A.
    
    This was a writ of entry, in which Thrasher demanded a farm in Deerfield, in this county, and counted upon his own seisin within twenty years, and upon a disseisin by the tenant.
    The cause was tried here at February term, 1820, upon the general issue.
    It was admitted, that one Jonathan Eastman was once seized of the demanded premises. The demandant shewed the record of a judgment in his favor against the said East-
      
      than, rendered bj this court at December term, 1813, in the county of Cheshire, upon a report of referees lor ¿1478 83 debt, and $125 18 costs, and the copy of an execution, issued upon said judgment, and duly extended upon the demanded premises in February, 1814. •
    The tenant’s title was a deed from Eastman to him, dated July 23, 1811 ; and he proved, that the consideration of the conveyance was a bond given by Haims to Eastman, with condition, that Haims should naainiáin Emtman and his wife during their natural lives.
    The demandant introduced evidence to shew, that the conveyancé from Eastman to Haines was fraudulent and void as respected creditors ; and Haims offered to prove, that, at the lime of the recovery by the demandant against Eastman, Thrasher had not in fact any subsisting debt against Eastman. But the demandant proving that Haines was present, and acting as the agent of Eastman before the referees, 'the Court rejected the evidence offered by Haines to impeach the judgment, and the jury returned a verdict for the demandant.
    
      Haines' counsel moved the court to grant a new trial, on the ground, that the evidence rejected ought to have been admitted.
    
      Cults, Smith and Mason, for the tenant.
    
      Sullivan and Bartkii, for the demándánt.
   Richardson, C. J.

There is no doubt that the judgment which Thrasher recovered against Eastman would be conclusive evidence of a debt in any suit between the parties to it. Phil. Ev. 223.—3 John. 157, Smith vs. Lewis.-3 East 348, Outram vs. Morewood.

It is equally Clear, that in general ⅛ judgment is not conclusive evidence of a debt against strangers, whose interest may be affected by it. 1 Mass. Rep. 165, Alexander vs. Gould.—11 ditto 89, Young vs. Hosmer.—6 ditto 242, Pierce vs. Jackson.

But there are cases where a judgment will be plenary evidence of a debt, even against strangers to it. Thus, where a third person is answerable to a defendant in a suit for what may be justly recovered against him, if, after due notice of such suit given to such third person, a judgment is, without fraud, recovered against such defendant, it will be conclusive evidence against such third person of a just debt, 4 Mass. Rep. 34.9, Hamilton vs. Cults.—A Dall. 436—6 John. 158, Kip vs. Brigham et a.—1 ditto 517, Blasdale vs. Babcock.—7 ditto 168, Kip vs. Brigham et a.

These decisions are founded upon this principle, that it would be unreasonable to permit such third person to contest the justice of the claim in the suit against himself, after having neglected, or failed to shew' its injustice in the suit against the person he was bound to indemnify. And in these cases it seems that notice and a refusal to defend the action is tantamount to notice and a judgment. For, “ if a “ demand be made, which the person indemnifying is bound “ to pay, and notice be given to him, and he refuse to de- “ fend the action, in consequence of which the person to be “ indemnified is obliged to pay the demand, that is equiva- “ lent to a judgment, and estops the other parly from say- “ ing that the defendant in the first action was not bound to “ pay the money.” Buller, J., in Duffield vs. Scott, 3 D. & E. 377.

In the case now before us, the question is, whether Haines is, under the circumstances of the case, precluded from shewing that, notwithstanding Thrasher recovered judgment against Eastman for a large sum of money, there was in fact nothing justly due, but that the judgment was founded altogether upon fraud and injustice ? Haines was not, in the proper sense of the terms, either a party or privy to the judgment. He was not bound to indemnify either party; and of course this case does not come within the principle of that class of cases. Is lie, then, precluded by the judgment from shewing, that there was in fact no just debt, merely because he was Eastman’s agent ? There is no case to be found in the books in which it has been decided, that he ⅛ precluded by that circumstance ; and there are certainly strong reasons why he should not be. He was the agent of Eastman, but he might not have had any suspicion that Thrasher would extend any execution be might obtain against Eastman, on land previously conveyed to himself; and Eastman might have neglected to furnish him the means, and to give him proper instructions for resisting Thrasher's claim. And what is still more decisive, the reference may have been entered into, not only without consulting him, but even against his will. We are clearly of opinion, that he ought to have been permitted to impeach Thrasher's judgment, and that there ought to be

A new trial granted.  