Harris, J.,
delivered the opinion of the court.
The question presented in this record seems never to have been directly decided in this court. It is therefore to be considered upon principle, with a view to the establishment of a just and uniform rule for future guidance.
The plaintiff in error is a surety on an executor’s bond. Judgment was rendered against the executor in the Probate Court, in favor of a legatee under the will, for certain slaves claimed to belong to the estate, or their alternate value. The executor failing to comply with the order and decree of the Probate Court, this suit is prosecuted against the plaintiff in error as his surety on the bond ; and the non-compliance with the order or decree of the Probate Court, assigned as a breach.
To this complaint, several pleas are filed, substantially averring that the slaves in controversy never were in the possession of the executor as the property of the'testator; that he never inventoried them as such, and that they were not in the possession of the testatrix at her death, nor belonged to her estate; setting up title in a third person, and that they were not assets of the estate; and could not, therefore, be delivered according to said order and decree.
[488]*488To these pleas, there was a demurrer, which was sustained, and final judgment rendered against the surety, the plaintiff in error, and the case brought to this court, by writ of error, to revise that judgment.
It is now insisted that the judgment in the Probate Court against the executor in favor of the usee, in this record, is conclusive of all these questions; and that the security cannot be heard to relitigate in this action on the executor’s bond, matters which might have been, or were actually litigated in the Probate Court between the executor and this usee, although the surety was neither a party to such proceeding, nor had notice of its pendency, so as to enable him to be heard in his defence.
It is admitted, that in ordinary suits against ordinary sureties, indorsers and guarantors, a judgment against the principal would not bo conclusive, perhaps not even prima facie evidence, against the surety; but it is insisted, that by the terms of the obligation here sued on, a different rule is established. It is said that the contract of this surety is, that the executor “ shall well and truly pay over and deliver the legacies,” &c., “ so far as the law will charge him;” that the executor is alone responsible to the Probate Court, and that forum alone can settle the question of what is a legacy; that when the Probate Court orders the executor to pay over the legacy, and he refuses, the obligation of the surety attaches, and he is concluded, by his contract, to deny his liability in law under said contract, for such default of his principal, judicially established by such order or decree against his principal.
As a general rule, the liability of a surety is not to be extended beyond the terms of his contract; incidents and intendments not necessarily deducible from the language employed, are never indulged.
The contract of this surety is, that the executor shall deliver this legacy so far as the larv will charge him. He agrees to be liable for the just and faithful administration of the estate belonging to the testator. He does not contract to be bound for the distribution or administration of property not belonging to the estate, or for the neglects, omissions, or misjudgments of his principal, or the agents or officers of the law, in suits to which he was neither a party nor privy, and of AYhich he had no notice. He is not [489]*489bound to make good the errors of courts, of counsel, or parties by which the property of third persons, not belonging to the estate, are decreed to be subjected to the course of administration without his default. And neither the law, justice, nor common honesty would be promoted by such a construction of his contract. There is nothing, therefore, in the nature, or character, or terms of this contract of suretyship from which it can be fairly inferred that this surety agreed and covenanted to be bound and concluded by the orders, judgments, or decrees of the probate, or any other court, to which he was neither a party nor privy.
In the absence of any obligation arising upon the special terms of this contract, by which the surety is concluded by the judgment against his principal, let us inquire, upon general principles, what effect is to be given to such judgment in an action on the bond against the surety.
The rule is universal, so far as we know, that judgments are only binding as such upon parties and privies.
B j parties, in. the sense here intended, all personshaving aright to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, where appeal lies, are included.
By the term privies, is meant those who stand in mutual or successive relationship to the same rights of property. And privies are distributed into several classes, according to the manner of this relationship. Thus there are privies in estate, as donor and donee, lessor and lessee, and joint-tenants ; privies in blood, as heir and ancestor, and coparceners; privies in representation, as executor and testator, administrator and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat. All these are more generally classed into privies in estate, privies in blood, and privies in law.
The ground upon which judgments bind those in privity with the party against whom they are rendered, is that they are identified in interest, by their mutual or successive relationship to the same rights of property involved in the litigation. See 1 Greenleaf Ev. 8th edit. §§ 189, 523, 536, and cases cited.
It is most indubitable, therefore, that this surety cannot be regarded as either a party, or in privity with any party, to the [490]*490judgment against his principal in this bond. He had no right to manage or control, or in any manner interfere with, the suit on which it was founded; nor was he even notified of its existence. He was not therefore a party. He had no relationship of any character to the rights of property here involved. He did not even occupy a relationship as close as that of co-executor or co-administrator, between whom it is. held, no privity exists, so as to make admissions by one evidence against the others. He had no power or authority over the estate, and certainly no interest in the property. He was not therefore a privy. See Duchess of Kingston’s Case, 20 State Trials, 538.
The general meaning of privies includes those who claim under or in right of parties. There is no such privity between a surety and his principal, as will take him out of the general rule. Bryant et al. v. Owen et al. 1 Kelly (Ga. R.) 370-1.
The reason for this rule, that verdicts and judgments bind conclusively parties and privies only, is because privies in blood, in estate, and in law, claim under the party
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Harris, J.,
delivered the opinion of the court.
The question presented in this record seems never to have been directly decided in this court. It is therefore to be considered upon principle, with a view to the establishment of a just and uniform rule for future guidance.
The plaintiff in error is a surety on an executor’s bond. Judgment was rendered against the executor in the Probate Court, in favor of a legatee under the will, for certain slaves claimed to belong to the estate, or their alternate value. The executor failing to comply with the order and decree of the Probate Court, this suit is prosecuted against the plaintiff in error as his surety on the bond ; and the non-compliance with the order or decree of the Probate Court, assigned as a breach.
To this complaint, several pleas are filed, substantially averring that the slaves in controversy never were in the possession of the executor as the property of the'testator; that he never inventoried them as such, and that they were not in the possession of the testatrix at her death, nor belonged to her estate; setting up title in a third person, and that they were not assets of the estate; and could not, therefore, be delivered according to said order and decree.
[488]*488To these pleas, there was a demurrer, which was sustained, and final judgment rendered against the surety, the plaintiff in error, and the case brought to this court, by writ of error, to revise that judgment.
It is now insisted that the judgment in the Probate Court against the executor in favor of the usee, in this record, is conclusive of all these questions; and that the security cannot be heard to relitigate in this action on the executor’s bond, matters which might have been, or were actually litigated in the Probate Court between the executor and this usee, although the surety was neither a party to such proceeding, nor had notice of its pendency, so as to enable him to be heard in his defence.
It is admitted, that in ordinary suits against ordinary sureties, indorsers and guarantors, a judgment against the principal would not bo conclusive, perhaps not even prima facie evidence, against the surety; but it is insisted, that by the terms of the obligation here sued on, a different rule is established. It is said that the contract of this surety is, that the executor “ shall well and truly pay over and deliver the legacies,” &c., “ so far as the law will charge him;” that the executor is alone responsible to the Probate Court, and that forum alone can settle the question of what is a legacy; that when the Probate Court orders the executor to pay over the legacy, and he refuses, the obligation of the surety attaches, and he is concluded, by his contract, to deny his liability in law under said contract, for such default of his principal, judicially established by such order or decree against his principal.
As a general rule, the liability of a surety is not to be extended beyond the terms of his contract; incidents and intendments not necessarily deducible from the language employed, are never indulged.
The contract of this surety is, that the executor shall deliver this legacy so far as the larv will charge him. He agrees to be liable for the just and faithful administration of the estate belonging to the testator. He does not contract to be bound for the distribution or administration of property not belonging to the estate, or for the neglects, omissions, or misjudgments of his principal, or the agents or officers of the law, in suits to which he was neither a party nor privy, and of AYhich he had no notice. He is not [489]*489bound to make good the errors of courts, of counsel, or parties by which the property of third persons, not belonging to the estate, are decreed to be subjected to the course of administration without his default. And neither the law, justice, nor common honesty would be promoted by such a construction of his contract. There is nothing, therefore, in the nature, or character, or terms of this contract of suretyship from which it can be fairly inferred that this surety agreed and covenanted to be bound and concluded by the orders, judgments, or decrees of the probate, or any other court, to which he was neither a party nor privy.
In the absence of any obligation arising upon the special terms of this contract, by which the surety is concluded by the judgment against his principal, let us inquire, upon general principles, what effect is to be given to such judgment in an action on the bond against the surety.
The rule is universal, so far as we know, that judgments are only binding as such upon parties and privies.
B j parties, in. the sense here intended, all personshaving aright to control the proceedings, to make defence, to adduce and cross-examine witnesses, and to appeal from the decision, where appeal lies, are included.
By the term privies, is meant those who stand in mutual or successive relationship to the same rights of property. And privies are distributed into several classes, according to the manner of this relationship. Thus there are privies in estate, as donor and donee, lessor and lessee, and joint-tenants ; privies in blood, as heir and ancestor, and coparceners; privies in representation, as executor and testator, administrator and intestate; privies in law, where the law, without privity of blood or estate, casts the land upon another, as by escheat. All these are more generally classed into privies in estate, privies in blood, and privies in law.
The ground upon which judgments bind those in privity with the party against whom they are rendered, is that they are identified in interest, by their mutual or successive relationship to the same rights of property involved in the litigation. See 1 Greenleaf Ev. 8th edit. §§ 189, 523, 536, and cases cited.
It is most indubitable, therefore, that this surety cannot be regarded as either a party, or in privity with any party, to the [490]*490judgment against his principal in this bond. He had no right to manage or control, or in any manner interfere with, the suit on which it was founded; nor was he even notified of its existence. He was not therefore a party. He had no relationship of any character to the rights of property here involved. He did not even occupy a relationship as close as that of co-executor or co-administrator, between whom it is. held, no privity exists, so as to make admissions by one evidence against the others. He had no power or authority over the estate, and certainly no interest in the property. He was not therefore a privy. See Duchess of Kingston’s Case, 20 State Trials, 538.
The general meaning of privies includes those who claim under or in right of parties. There is no such privity between a surety and his principal, as will take him out of the general rule. Bryant et al. v. Owen et al. 1 Kelly (Ga. R.) 370-1.
The reason for this rule, that verdicts and judgments bind conclusively parties and privies only, is because privies in blood, in estate, and in law, claim under the party against whom the judgment is rendered; and they claiming his rights, are of course bound as he is; but as to all others, they are not conclusively binding, because it is unjust to bind one by any proceeding in which he had no opportunity of making a defence, of offering evidence, of cross-examining witnesses, or of appealing, if he was dissatisfied with the judgment; and this is called, in Burke v. Granberry (Gilmer’s R. 25), “ a golden rule.” Munford v. Overseers of the Poor, 2 Rand. 318.
Lord Coke said, that to judge a man in a civil or criminal case, without affording him an opportunity of being heard, would be. against Magna Charta.
And it has been repeatedly held in this country, under the terms “law of the land,” “due course of law,” “ due process of law,” embodied in our respective State and Federal Constitutions, is meant, that every citizen shall hold all his civil and political rights under the protection of a general law, which hears before it condemns; which proceeds upon notice and inquiry, and renders judgment against him, only after a fair and impartial trial. See Smith’s Com. on Const. Construction, 722, § 593-4, and authorities cited.
The conclusion is inevitable, therefore, upon well-established [491]*491elementary principles, that judgments or decrees against executors, &c., are not conclusive evidence against the surety in a suit upon the bond.
An examination of the cases, both English and American, so far as they have come under our observation, sustains this position.
In Virginia, it was so held by Judge Tucker, in Craddock v. Turner’s Admr. 6 Leigh R. 124, in an able review of the cases. Judge Green, in Munford v. The Overseers of the Poor, 2 Randolph’s R. 315, very carefully considers the whole doctrine of the English and American courts, and the reasons upon which it is founded, and arrives at the same conclusion,
In North Carolina, it was held by Judge Taylor, in McKellar v. Bowell et al. 4 Hawks R. 34, a case argued by Ruffin on one side, and Gaston on the other, that the record of a recovery against a guardian, is not evidence against his sureties in an action on their bond for his default. In the same vol. (4 Hawks, 43), this ease is affirmed, and applied to a suit against sureties on an administrator’s bond.
And in the same vol. (4 Hawks, 341), the foregoing cases are approved by Judge Hall.
Afterwards, in Vanhook v. Barnett, 4 Devereux R. 268, Judge Daniel cites and approves these cases, and still adheres to the doctrine, that the judgment against the principal is not even prima facie evidence against the sureties.
So in South Carolina, in the case of the Ordinary v. Condy, 2 Hill’s R. 313, Judge Harper reviews the English cases and some of the American cases, and especially the earlier cases in that State, which had been cited as establishing a contrary doctrine; shows that they have been erroneously cited for that purpose, and determines, as the result of his investigation, that a judgment against an administrator is prima facie evidence, but not conclusive, against his sureties.
In Georgia, in the case of Bryant et al. v. Owen et al. 1 Kelly’s R. 355, Judge Nisbet holds that a decree against a guardian is only prima facie evidence of a devastavit against the surety, not conclusive. He says: “ The surety now before the court was not a party to this suit in equity : he had no notice, so far as the record discloses, of its pendency: of course, he was not heard in his own defence in, [492]*492that suit. It is contrary to natural justice, and also to all the analogies of the law, that one should be estopped by a decree to which he was not a party, and of which he had no notice: such a rule would most effectually oust the security of his day in court. His rights would, by such a rule, depend on the diligence or fidelity of others. The principal might collude with the complainant, and permit an iniquitous decree to be rendered against him in order to charge his surety. Human nature is not too good for that, unfortunately ; or his carelessness or neglect might work irreparable injury to the surety.”
In Massachusetts, 15 Mass. 47; in Pennsylvania, 5 Binney, 184; in Kentucky, 5 Monroe, 267 ; in Maryland, 2 Gill & John. 235 ; 3 Harr. & McHenry, 242, we find the same doctrine asserted. Also, in New York, 24 Wend. 52, a very full and able opinion by Judge Cowen.
In our examination, wTe have found no case of any authority to the contrary.
The case of Singleton v. Garrett, 23 Miss. R. 195, was a suit against the administrator and surety, and a joint flea for both.
The cases of Mann v. Yazoo City, 31 Miss. R. 576, and The State v. Stewart, 36 lb. 652, so far as they have any application, are authorities in favor of the surety rather than against him.
We think, therefore, both upon principle and authority, that the true rule is, that in a suit against a surety upon an executor’s bond, the-judgment or decree of the Probate Court is only prima facie evidence against the surety, and not conclusive.
It is, indeed, conclusive of the fact of the rendition of such a judgment; but it is only prima facie evidence of the ulterior facts upon which it is founded.
As to the ulterior facts upon which it rests, it is only to be regarded against the surety as the admission of the principal during the transaction of the business for which the surety was bound, so as to become a part o'f the res gestae.
Such admissions, whether in pais or in judicio, in the course of the administration as part of the res gestee, are evidence against the surety, but not conclusive.
■ As to the surety, such judgment is to be taken as the unsolemn admission of the principal, extra judicium, or as his verbal admis[493]*493sion not acted on, and which may therefore be controverted by the .surety, without any breach of'good faith, or evasion of public justice. Though admissible in evidence as part of the res gestee, they are not conclusive against Mm. 1 Greenl. Ev. 8th edit.. §§ 187, 207, 209, 211, and cases cited in notes.
Under these views, the demurrer to the second, third, and fourth pleas should have been overruled.
There was no error in the ruling of the court in relation to the introduction of the record from the Probate Court. The depositions, except upon appeal, are not necessarily a part of the record. See Henderson v. Cargill et al. 31 Miss. 413, 414.
The transcript of the record from the High Court of Errors and Appeals was properly excluded, as there was no proof of loss of the original record in the Probate Court, so as to make it admissible as secondary evidence.
For the error committed in sustaining the demurrers to the special pleas, the judgment will he reversed, cause remanded, and a venire de novo awarded.
Handy, J., did not sit in this case.