Ellswokth, J.
The plaintiff sets out in his bill, that Joseph S. Curtis and C. C. Randall agreed with him, that he should carry certain passengers and freight from the port of New York to California, in the steamer Hartford. He avers that he has done all that he engaged to do, to complete the voyage, and is now entitled to receive the price of his services, agreeably to the contract. For the faithful payment of this money, the defendant becomes liable with said J. S. Curtis and C. C. Randall, whether as one of the principals, or as a surety for the other two, is not entirely clear, nor in our view, is it important, as the defendant, in either character, may call on [the plaintiff to make good his allegations, and of course may introduce evidence to disprove them. As principal, he must obviously have his own day in court, unaffected by proceedings against others; and as surety, he is, as all agree, entitled to make any defence which his principals can make, and whether he can have any more or not, has been strenuously controverted and is denied; but considered as a surety, we can not doubt that he must be let in to any equitable defence, even if performance by the plaintiff is not held to be a precedent condition; and such is the defence of the non-performance, set up in the defendant’s answer.
The defendant first denies the obligations in the bill, in a general form; he says, in his answer, “ That the plaintiff has totally violated his contract,” andto be more particular, “ That he did not fit out, and prepare said steamer,” and goes on to deny at great length, what the bill generally asserts, and then, he states wherein the plaintiff has not performed the voyage, as alleged. This, then, was the issue before the court, and *398before the committee. To establish the facts in the bill, the plaintiff offered a variety of evidence, all of which was received, and, from what afterwards transpired, was satisfactory to the mind of the committee, to prove all for which it was offered. To impair and contradict the evidence so offered, as well as to prove the truth of the allegations in the defendant’s answer, the defendant offered his evidence to the contrary, and claimed to be able to establish his defence as already stated. The plaintiff objected to it, on the ground that all the facts in issue had been adjudicated between the plaintiff and defendant, and could not be again brought into dispute; that they had been all decided in the plaintiff’s favor; and he read to the committee, the record of a judgment in the superior court at Hartford, in a suit of said Joseph S. Curtis and C. C. Randall, against said Chapin, in an action on the case against him, and the other owners of the steamer Hartford, as common carriers, for not carrying certain passengers and freight from the port of New York to California; there being in the declaration several counts, some for negligence, some for false warranty, and one in trover. The committee found it was the same contract in both cases. It will be observed that, to that declaration, a demurrer was put in by Mr. Chapin, and on the demurrer, judgment was rendered for the plaintiff, and damages assessed at $100. The plaintiff insists that this record conclusively proves that all the facts contained in that declaration were adjudicated, except so far as a recovery of $100 went to prove the contrary. The committee ruled in favor of the plaintiff, and after excluding all the evidence offered by the defendant, found and reported in the plaintiff’s favor, that the entire freight money was due the plaintiff, amounting to the sum of $4,795.94.
Now, we are not able to see how this ean be so. Did that demurrer prove that the facts contained in the declaration were not true ? and it must be this, to help the plaintiff. It rather proved the contrary, if it proved anything; and for the purposes of that case, it certainly did prove the contrary. *399How did it then prove full performance by the plaintiff, which was flatly denied in the declaration ? The whole effect of the judgment, on a demurrer, and the $100 damages, is that on that declaration, on some of the counts, the defendant had subjected himself to pay $100 for-not performing his contract, or for his fraudulent warranty, or his conversion of the plaintiff’s goods. The admission by the demurrer, is rather that the common carriers did nothing, than that they performed anything,, much less, that they had done everything, except to the amount of $100, which damages might have been given and probably were given for the carriers’ destroying a portion of the shippers’ lumber in the port of New York; and so, that record furnished no evidence at all, of the performance of the voyage by the owners of the Hartford, any more than a record of a recovery, by a proprietor, who has sued his contractor for stealing and wasting the timber he furnished him, to build the proprietor’s house, and a recovery for the value of the lumber destroyed, proves that the house was built,in time and manner as agreed; and there being other counts for not performing in due time and in proper manner, makes no difference, for an admission, even of the whole cause of action in such count, has no tendency to prove performance by the builder. No further action can be brought for damagés, it is true, and that is all. The record of that suit is certainly consistent with the fact, that the steamer never left the port of New York. The mistake of the plaintiff’s counsel, as we conceive, is this, that the damages assessed on the demurrer, disprove the truth of the declaration, as to the carriers’ neglect, except as to the $100, or to put it in another form, the carriers being sued for not carrying goods as agreed, but converting them to their own use, having paid damages for their misconduct, can recover their whole freight, just as if they had fully performed, and as if this fact of full performance had been established, and adjudicated by that proceeding. It can not be so. Had Joseph S. Curtis and C. C. Randall sued Mr. Chapin on a *400specific contract, and recovered damages, by a verdict, or on demurrer, this record would prove every material point stated in the declaration, because whatever is necessary to be found, must be held to have been proved, or admitted, on the trial. But the present case has no resemblance to that: nothing follows as a necessary, or legitimate consequence of this demurrer, but that the carriers had not kept, but had abandoned, their undertaking, and for some misconduct or other in the matter, were adjudged to pay one hundred dollars damages.
Another question has been made, which, under other circumstances, we should consider worthy of our most serious consideration, but shall pass it over, at the present time: we mean, allowing the defendant to be a surety to J. S. Curtis and C. C. Randall, would a judgment against them be conclusive upon him while he was not a party in that suit? Were he privy by representation, like an heir, executor, or assignee, it is agreed that he would be bound, but beyond that, except perhaps in a few peculiar cases, it is insisted, by the defendant’s counsel, as a general principle of law, that a surety stands upon his own rights, and is not estopped by a judgment against his principal. This question has been argued on both sides, with much ability and learning, and we need only commend the briefs of counsel to the profession, in order that the distinctions made, and the books cited, may receive the attention they deserve; but situated as the case is, we do not think we are called upon to express an opinion upon the question.
For these reasons we advise the superior court to set aside the report.
In this opinion the other judges concurred.