On the trial of this cause, Nelson Johnson was offered as a witness for the defendant, and was rejected, on the ground that the defendant had signed the notes, on which the action was brought, as surety for the wife of the witness offered. The decision was put upon the ground that should the defendant succeed, the record of the judg-. ment would be evidence to sustain the same defense, in favor of the wife, in an action against her, by the plaintiff, to charge her separate estate. Since the decision of the court of appeals in the case of Yale v. Dederer, (18 N. Y. Rep. 265,) it may be doubted whether there was sufficient evidence before the court to charge her separate estate. If not, the defendant was not, in any legal sense, her surety : because, if her separate estate was not charged, the note, as such, was not obligatory in any respect upon her. •
But conceding that her separate estate was charged by the transaction, and that the defendant is to be regarded as her surety, either in law or equity, in respect of these notes, still the decision was, I think, clearly erroneous. The ground upon which persons at common law are bound by a former judgment, or decree, upon the same subject matter is, that they were either parties to the former action, or stood in legal privity to it, so as to be concluded by it. It is not binding between persons 'who were neither parties nor privies. It seems to be well settled that in a separate action, brought by the creditor, against either principal or surety, the-party not joined is not concluded or affected by the judgment. (Douglass v. Howland, 24 Wend. 35. Jackson v. Griswold, 4 Hill, 522. Moss v. McCulloch, 5 id. 134. Barker v. Cassidy, 16 Barb. 177.)
*290And in Jackson v. Griswold it was held that a surety was not hound by a judgment against his principal, at the suit of the creditor, even where the defense was conducted exclusively by the surety, as agent for his principal, he not being a party to the record.
And in the same case, Cowen, justice, referring to a separate action by the creditor, against the principal debtor, says that “ 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 the event, if against him, than a mere stranger.” In such a case, however, the learned justice concedes that had the judgment been against the plaintiff, the surety would have been discharged. This, however, is not on the ground of his being a party, or privy, but because the judgment would extinguish the debt; and the principal thing being destroyed, the obligation of the surety, being the incident, is necessarily destroyed with it. But for the same reason a judgment in favor of a surety, against the creditor, in a separate action by the latter, against the former, would not affect the rights of the creditor against the principal debtor; because such a judgment would not necessarily extinguish the debt, and such princijDal debtor would be neither party nor privy to the action. It can scarcely be pretended that Mrs. Johnson is concluded by the result of this action against her surety, as there is no pretense of any agreement on her part, to be bound by any such litigation.
Estoppels, of this description, are mutual; and as she is not bound, neither would the creditors be, as against her, had the result been the other way.
The rule of the civil law is different, and for a good reason, for there the surety in such a case is regarded as the same party with the principal, with respect to whatever is decided for or against him, and has the right to appeal from the judgment, although not a party to the record. The witness offered was, therefore, a competent witness for the defendant, *291notwithstanding his relation to the principal debtor; although he would not have been, had she been a party to the action.
[Monroe General Term, December 5, 1859.It follows that a new trial must be granted, with costs to abide the event,
T. R. Strong, J.It was found at special term, that the money in question was lent by the plaintiff upon the credit of Mrs. Johnson, and her request generally to the plaintiff to let her husband have the money upon her notes ; and that it was to be inferred from her giving the notes, and the request made by her, that she intended to charge her separate estate with the payment of the indebtedness; but it was further found, that the money was not borrowed by her for the benefit of her separate estate; and it is equally clear upon the evidence, that it was not borrowed or used for her benefit, in any respect. I think the evidence establishes that she gave the notes, and requested the plaintiff to let her husband have the money on them, for the accommodation and as the mere surety of her husband. In this view of the facts, the principle of the case of Yale v. Dederer, (18 N. Y. Rep. 265,) is decisive against the action. It is held in that case, “ that a wife’s separate estate is liable to pay her debts during coverture, in whatever form they are incurred, not because her contracts have any validity at law, nor by way of appointment or charge, but because equity deems it to be just that they should be paid out of such estate and further, that “if the promise is on her own account, if she or her separate estate receive a benefit, equity will lay hold of those circumstances and compel her property to respond to the engagement. Where these grounds of liability do not exist, there is no principle on which her estate can be made answerable.”
The judgment should therefore be reversed, and a new trial granted, with costs to abide the event.
Welles, J., concurred. New trial granted.
T. R. Strong, Welles and Johnson, Justices.]