Arthur French versus Nathan W. Neal et al., 24 Pick. 55

Morton J. delivered the opinion of the Court. This action was tried on the general issue, and several questions arose upon the trial, which were reserved for the consideration of the whole Court. The first step which the plaintiff was necessarily required to take, to support the first three counts in his declaration, was to offer the notes therein declared on. These notes had been used in a former trial ; and of course were in the custody of the court.

The fact that the clerk had lent the papers to the plaintiff’s counsel, and that he then had the manual possession of them, cannot produce the slightest change in the question to be considered. The clerk is the agent of the court, for the purpose of preserving all original documents used by order of the court, as well as for keeping a true record of all their proceedings. He, by law, has the custody of all the papers and records of the court, and it is his duty to keep them under his own control at all times.

If he accommodates the bar with the occasional inspection and use of them, it is by courtesy; and they are bound to restore them when required. They are, in legal contemplation, always on the files of the court. No person -has a right to withdraw any papers. It can only be done by an order of the court. Whether such order shall pass, and if it does pass, upon what terms, is a matter within the discretion of the court. A motion to withdraw papers, is one which the court will generally grant, either with or without the condition, that copies be left.

But it is obvious, that cases may arise, in which it would be their duty to deny such application. The present point comes before us substantially upon an application of the plaintiff to withdraw the notes in question from the files of the former trial, for the purpose of giving .them in evidence in this. Ought this motion to be granted ? Will it promote the ends of justice ? I will, in the first place, consider the question in reference to the note payable to the plaintiff, and then inquire whether the indorsed notes stand on any different ground.

The plaintiff commenced an action on this note against eight of the nine defendants. The non-joinder of the ninth was not pleaded in abatement ; but the action went to trial upon its merits, under such circumstances and with such evidence as the plaintiff could and chose to produce. The verdict was against him. The Court decided that the defendants had a good legal defence. And from a recurrence to the facts of that case, which are fresh in our recollection, it is apparent that they had a good defence, in foro conscientia, as well as in law. The plaintiff sold his property to H. Price & Co.

He gave credit to the two partners composing that firm. The other defendants paid those two for all that portion of the property which came to their use. These facts are believed to be undisputed ; and, without referring to others, show for the defendants a strong equitable defence. We think, therefore, that under these circumstances we ought not to grant to the plaintiff facilities for the second trial of a case which has been once fully and fairly tried. The promotion of substantial justice should guide our discretion.

We should endanger rather than insure the dispensation of justice between these parties, by granting this application. The plaintiff must stand on his strict legal rights. If the former judgment does not stand in his way, and he can establish a legal claim, he must prevail. But the Court, in the exercise of a discretionary power, do not feel at liberty to aid him. Grant on New Trials, 137 to 152; Rogerson v. Neal, 16 Pick. 370. On this application we can discover no distinction between the several notes. If the legal rights of the parties are different, they will of course avail themselves of that difference.

In relation to the claims of the promisees of the indorsed notes, for goods sold and delivered, they rest upon a distinct foundation ; and we do not perceive why they may not have a right to try these claims in their own names, unembarrassed by the former judgment against the present plaintiff. Nor are we called upon now to decide whether these indorsed notes may be withdrawn upon the application of the respective payees, if they should have occasion to use them. We only mean to say, that the motion of the plaintiff, whether made for himself or as the agent of the other payees, cannot prevail.

Expedit reipublicce ut sit finis litium. The record of the former judgment was admitted in evidence ; and we have no doubt properly. The sound and salutary rule, nemo debet bis vexari pro endem causa, applies. A former judgment on the same cause of action and between the same parties, is always competent evidence. The best test of the identity is the admissibility of the same evidence on both trials. Here the same evidence, viz. the note, is relied upon in both cases. It is undisputed, that the cause of action was the same ; and we think, within the rules of law, the parties'were the same.

It is not necessary, to constitute a legal identity, that each party on the record should be composed of the identical names and persons. It is enough that they be substantially the same. And this may often be the case when, nominally, they are different. 1 Stark. Ev. 194 ; Gilb. Ev. 34 ; Bac. Abr. Evidence, F; Aslin v. Parkin, 2 Burr. 668 ; Hitchin v. Campbell, 2 W. Bl. 827 ; S. C. 3 Wils. 304 ; Outram v. Morewood, 3 East, 346 ; Adams v. Barnes, 17 Mass. R. 365 ; Case v. Reeve, 14 Johns. R. 82 ; Calhoun's Lessee v. Dunning, 4 Dallas, 120.

Had the present action been brought against the same eight individuals named in the former, the admissibility of the judgment would have been too clear to admit of question. These eight, therefore, ought not to be deprived of this evidence, and lose all the benefit of the former trial. It was not their fault that the ninth was not joined. The plaintiff ought not to complain teat they did not plead the non-joinder in abatement.

Ano as no judgment can be rendered but a joint one, the record must be admitted in favor of Copeland as well as the others, and, if not controlled, must entitle all the defendants to a verdict and'judgment. Should an action be commenced against Copeland alone, and should he neglect to take advantage of the non-joinder of .the other defendants, it is doubtful whether he could avail himself of the former judgment; but it will be time enough to decide that question when it shall arise.

As the ruling at nisi prius only extended to the admissibility of the record of the former trial, we have confined our decision to that point, and do not deem it proper to give any opinion upon the effect of the evidence. Whether, if specially pleaded, it would have been a bar, and whether, if used in evidence on the general issue, it is to be deemed conclusive, are questions which have been learnedly and elaborately discussed, but which, we think, do not properly arise in the case, and are not necessary to a decision of it.

The record is clearly prima facie, and, in the language of an eminent judge, is £C highly persuasive ” evidence ; but, whether conclusive or not, we have not thought it our duty to inquire. We have thus far confined our remarks principally, if not entirely, to the note payable to the plaintiff himself. We think they are substantially applicable to the indorsed notes. Had they been the property of the plaintiff, or been so indorsed by him as to enable him to recover upon them, no distinction could have been made.

The defendant’s counsel would hardly contend that indorsed notes might be sued again and again, by merely changing the name of the plaintiffs. Or, if the Court would prevent this by impounding the notes, that the' same might be done upon a set of bills of exchange. Surely, in such cases, one judgment might be used in a subsequent suit, notwithstanding a change of the nominal plaintiff.

But the argument is, that these notes never ceased to be the property of the respective payees ; that they were indorsed to the plaintiff in trust for and as the agent of them, and that the indorsement was not so made as to enable the plaintiff to recover upon them. And inasmuch as no judgment could lawfully be rendered in favor of the plaintiff, so the defendants can derive no benefit from the one rendered in their favor. It is true, that a verdict cannot be evidence against a man, where an opposite verdict would not be evidence in his favor. 1 Stark. Ev. 196, and cases there cited.

But we do not think the doctrine of mutuality, at all applicable to this subject. The notes were indorsed to the plaintiff as agent, and his counsel contend that the property in them was not thereby changed, and the authority given to him to collect them only authorized him to sue them in the names of the promisees. This question was discussed in the former trial. And although there is some conflict of authority on the subject, yet we cannot entertain much doubt upon it. But we do not intend to enter into an examination of it. The notes were in the plaintiff’s hands indorsed in blank.

This, prima facie, vested the property in him and authorized him to fill up the blank as he pleased. He had already declared upon the notes as indorsed to himself. And on the trial he wrote such an indorsement as he thought best, and doubtless such a one as he' supposed would support his action. The "notes were then offered, and notwithstanding the defendant’s objections, were admitted in evidence, in support of the declaration. This decision never has been reversed ; and until set aside, it must be deemed, as to the plaintiff at least, valid and binding. It is res judicata.

He knew the meaning of the indorsement, and he should be estopped from denying its sufficiency to support his declaration. The notes were regularly in evidence before the jury, and the case was tried upon its merits. It cannot be pretended that a change in the form of the indorsement would have produced any effect upon the verdict of the jury or the judgment of the Court. It is not necessary to consider the plaintiff’s motion to alter the form of the indorsement. If the plaintiff cannot obtain the possession of the notes, he certainly cannot alter the indorsement on them.

Of the general power of the Court to allow indorsements to be changed or erased, there is no doubt This power, which is discretionary, they will exercise, whenever the facts of the case warrant it, and the ends of justice require it. We have already given»our reasons for declining to grant the plaintiff any facilities for a second trial of bis cause. In relation to the count for goods sold and delivered, and all the subsequent counts, it is very apparent that they aré for the same causes of action which were tried in the former suit.

We have -endeavoured to show that the insertion of the additional defendant cannot vary them. The record of the former trial, being properly admitted and uncontrolled, entitled the defendants to a verdict. The plaintiff, upon the decision of the questions of law, by the presiding judge, became nonsuit. This decision being sustained, the defendants must have judgment. In rendering this judgment, we have no misgiving.

In two full trials, conducted with great learning and ability, we have had ample opportunity to make ourselves acquainted with all the facts of the case and with all the principles of law applicable to them ; and we feel bound to say, that we are entirely satisfied with the result. Judgment on the nonsuit.