By the common law, judgments are conclusive evidence between parties and privies. Swift’s Evid. 9. 1 Phill. Evid. 245. Canaan v. The Greenwoods Turnpike Co. 1 Conn. Rep. 1.
The defendants were not, and could not be made, parties to the action against Leveret S. Chapman. But they are privies, not indeed in the fourfold class of privities of Lord Coke, (1 Inst. 271. a.) but privies in contract, as defined by Jacob, (Law Dict. in verbo Privies,) partakers having an interest in any action or thing, or any relation to another. But the defendants *76disclaim all relation to the judgment in question, and claim that it was rendered between strangers to them. But they stand in the same relation to their principal as bail to theirs. The case of principal and surety, according to Pothier, a civilian of great authority, is not within the rule of yes inter alios acta, The dependence of the obligation of a security on that of the principal debtor, to which it has acceded, also causes the security to be deemed the same party with the principal debtor, in regard to all that is determined for or against the principal debtor. Traite des Obligations, part 4. page 294. (Newberned.)
Had Leveret S. Chapman survived, and been joined in this action, could he be permitted to show, that the judgment against him was for a greater sum than was due from his testator? If not, can his sureties do it, without showing fraud between the parties to the judgment? Surely not: for it is a maxim in the law, that the judgment of a court of competent jurisdiction cannot be impeached collaterally, by any other means. Fermor's case, 3 Rep. 77. Bright v. Eynon, 1 Burr. 390. Maxfield's Lessee v. Levy, 4 Dall. 335. 1 Phil. Ev. 261.
There can be no doubt of the right of the plaintiff to maintain this action against the sureties of the executor, for the benefit of the creditors of the testator. But such creditor must first establish his claim, by due course of law, as was decided by the court of appeals in Virginia, in an action on an executor's bond; (Braxton v. Winslow, 1 Wash. Rep. 31.) where it was said, by the court, that a man who claims to be a creditor, must show himself to be a creditor in the usual course of law. It is not enough to produce a mere document of debt; he must first institute a suit against the executor or administrator; because it is in the first instance a dispute between creditor and debtor, whether or not a debt actually exists; a dispute which the sureties to such a bond, who are strangers to the contract, are by no means competent to manage. A similar decision, in a similar case, was made by the supreme judicial court in Massachusetts, in Cony, Judge, v. Williams & al. 9 Mass. Rep. 114, wherein it was said, by the court, that it must be considered as settled law with us, and so is the practice, that the non-payment of a debt, after it has been ascertained by a judgment of a court, or by commissioners, is a breach of an administration bond. The authority of these cases was recognised by the supreme court of New-York, in The People v. Dunlap, 3 Johns. Rep. 437
*77In the case before us, the claim of a creditor has been established in due course of law, and payment refused by the executors, of which the only proper evidence was properly admitted by the court.
I therefore do not advise a new trial.
The other Judges were of the same opinion.New trial not to be granted.