
    Francis C. Treadwell, Plaintiff, v. Russell Stebbins and Abraham Godwin, Jr., Defendants.
    1. Where two notes are given upon a single consideration, and one has been put in suit and facts directly in issue, which, if true, must affect both notes alike, are established by verdict and judgment, the verdict and judgment are evidence of those facts in a subsequent suit between the same parties depending upon the character and validity of the other note.
    2. Hence, when the maker of a note who had paid it, sued the indorser to recover the amount as money paid for the use of the latter, alleging that that note and another were made by him for a special purpose by request of such indorser to enable the latter to raise money, and on his agreement to pay it at maturity, and on the trial, the plaintiff has given evidence tending to show that the two notes were given under one arrangement, and upon the same consideration, it is competent to give in evidence a judgment rfecord in a suit on such other note, brought by spell indorser against such maker, in which the same allegations were relied upon as a defense and to prove that those allegations were the only matters contested on the trial, and that such indorser had a verdict thereon, and judgment in his favor.
    3. When a witness has been examined and has left the stand and the trial has proceeded, whether the party shall be permitted to recall him for further examination to the same matters, rests' in the discretion of the Judge presiding at the trial.
    (Before Hoffman and Woodruff, J. J.)
    Heard, November 18th, 1859;
    decided, May 12th, 1860.
    This action, was brought in the Supreme Court, of July Term, 1846, and was tried on the 21st of March, 1848, before Mr. Justice Edwards of that Court, by whom a nonsuit was ordered at the trial. The plaintiff made a case whereon to move for a new trial, and in that stage of the proceedings, the action was, with others, (pursuant to statute,) transferred to this Court, and the motion brought to a hearing in General Term.
    The declaration (the action being commenced before the enactment of the Code of Procedure) was for money paid, laid out and expended by the plaintiff for the defendants, with the other usual money counts. The defendant Godwin did not appear, and whether he was served with process or not, the case does not disclose. The defendant Stebbins interposed the plea of nonassumpsit and a special plea of payment'; the latter plea was traversed by the plaintiff by replication.
    The case sought by the plaintiff to be established was this: That the defendants agreed with the plaintiff, (in consideration that he would receive one Robert R. Taylor into copartnership,) that they would advance for Taylor $3,000, as his share of the capital. That as a means of raising the money wherewith to make such advance, the defendants requested the plaintiff and he consented to make for their accommodation his two notes for $2,000 each, payable to the order of Godwin and indorsed by the defendants, they undertaking to procure the notes to be discounted and passed to the plaintiff’s credit at the Dry Dock Bank, of which Stebbins was a Director, and to pay the same at maturity. The plaintiff nevertheless to furnish $1,000 on account thereof, so as to leave the actual advance by the defendants, $3,000 as agreed. That the plaintiff, in money and notes, furnished to the defendants such $1,000. That one of such notes for $2,000 was discounted by one Peck; and afterwards one Laing, his executor, sued the defendant Stebbins thereon as in-, dorser, and recovered the amount thereof from him. That the other note was discounted at the Dry Dock Bank, and from time to time renewed, and was reduced, by $500 of money so furnished by the plaintiff, to $1,500, after which the plaintiff was sued thereon, by the bank, as maker, and was compelled to pay, and did, on or shortly after the 5th of March, 1841, pay the same with interest amounting to $1,647.66, and to recover the money so paid, this suit was brought in 1846.
    The plaintiff gave evidence which tended (as claimed by the plaintiff) to show an admission by Stebbins of the original agreement by the defendants, to advance $3,000 for Taylor, as capital in his copartnership with the plaintiff. Also that a note for $2,000, made November 11th, 1833, by the plaintiff, to the order of Godwin, and indorsed by the defendants, was held by Peck at his decease, and passed to Laing as his executor Also, (by a statement of Washburn, cashier,) that another note for $2,000, dated May 14th, 1833, made by the plaintiff to the order of Godwin, and indorsed by the defendants, was discounted at the Dry Dock Bank, and the proceeds placed to the credit of the plaintiff, was renewed from time to time, to one dated January 21st, 1854, at 60 days, reduced by payment to $1,500, and that Stebbins was during the same period a Director of that Bank, and that certain two notes amounting to $500, payable to order of plaintiff, were discounted for Stebbins, who received the proceeds. The plaintiff then offered to read in evidence the record of a judgment recovered by the Bank against the plaintiff, on a note for $1,500, made by him to the order of Godwin and indorsed by the defendants, dated January 21st, 1854, payable 60 days after date. This was objected to and rejected as irrelevant, and the plaintiff excepted. The plaintiff then proved an assignment by the Dry Dock Bank to Jedd Fry, of a judgment recovered against the plaintiff for $2,131.45, damages and costs, November 8th, 1838, and the payment by the plaintiff of $1,647tW, thereon.
    The plaintiff then offered in evidence the record of a judgment in a suit brought by the defendant Stebbins against the present plaintiff as maker of the note for $2,000, dated November 11th, 1833, payable to the defendant’s order which had been held by Peck, and by Laing his executor as above stated, in which suit the present plaintiff had by notice annexed to his plea set up as a defense, that that note was made for the accommodation of these defendants under their agreement, and under the circumstances above alleged by the plaintiff, and on the trial of which action the defendant had a verdict and judgment in his favor.
    The plaintiff then offered to prove that the only matter controverted on the trial in the suit of Stebbins v. Treadwell, was whether the note then in suit, made by Francis 0. Treadwell and payable to the order of Abraham Godwin, Jr., six months after date,, for $2,000, and dated November 11th, 1833, and indorsed by said Godwin and by Stebbins, the plaintiff in that suit, was made for the purpose of enabling Godwin & Stebbins to raise the sum of $2,000, as part of the sum of $3,000, which they had agreed to furnish to Robert R. Taylor as his part of the capital to be employed in the baking business in a copartnership between said Treadwell & Taylor, to be carried on under the name of said Treadwell, in the city of New York, and whether the said note was made at the instance of Stebbins & Godwin for that purpose, and to follow up that proof with evidence that the note on which the Dry Dock Bank recovered the said judgment assigned to Jedd Fry, and on which the plaintiff had made the payments to which Jedd Fry had testified, was made for the like purpose, and for the accommodation of Stebbins & Goodwin, except as to the sum of $1,000, part of the aggregate amount of the two original notes for $2,000 each; that Treadwell by the two promissory notes referred to in Washburn’s statement, paid to Stebbins $500 of the said aggregate sum of $4,000, and also paid to the Dry Dock Bank $500 of said aggregate sum of ■ $4,000, on one of the renewals of said note for $2,000 mentioned in Washburn’s statement.
    The defendant’s counsel objected to so much of the plaintiff’s offer as related to the matters controverted on the trial in the suit of Stebbins v. Treadwell. So much of the offer as was objected to was overruled by the Court, and the plaintiff’s counsel excepted.
    The plaintiff then proposed to recall Laing, a witness whom he had already examined, in order to inquire if his recollection had been refreshed, and to prove further admissions of Stebbins tending to show that the note which was discounted at the Dry Dock Bank, was made under the arrangement to raise money to be advanced by the defendants as capital for Taylor.
    This was objected to on the ground that the witness had already been examined on the subject, and his testimony exhausted. The objection was sustained, and the plaintiff excepted.
    The plaintiff having rested, the defendant’s counsel moved for a nonsuit on the grounds,
    1st. That the plaintiff, on the face of the note is primarily liable to pay, unless that liability is removed by the testimony of the witness Laing.
    
      2d. The testimony of Laing does not identify the note in question. He speaks of a $2,000 note, whereas the note in question is for $1,500; and
    3d. That this suit is brought against Stebbins & Godwin jointly, and a joint liability must be proved, and that whatever may-be the force or effect of the admissions of Stebbins to Laing, the defendant Godwin cannot be affected by such admissions, and there is no testimony in the case as against the defendant Godwin.
    The motion for a nonsuit was granted by the Court, and the plaintiff’s counsel excepted.
    
      Joshua M. Van Cott, for the plaintiff.
    I. The substantial ground on which the plaintiff was nonsuited, was his alleged failure to identify the note (and judgment upon it) on which he had made the payments, with either of the $2,000 notes made on account of Taylor’s contribution to capital.
    That identification was complete.
    1. Stebbins and Godwin were to furnish the capital.
    2. It was contributed through two $2,000 notes, made by plaintiff arid indorsed by them.
    3. One of those two notes (dated 11th November, 1833, and held by the estate of Mathew Peck,) was paid by Stebbins.
    ■ 4. The other of those two notes was discounted by the Dry Dock Bank, of which Stebbins was a Director, and the proceeds passed to the credit of the plaintiff. This application of the proceeds (unexplained) decisively characterizes the transaction and identifies the note.
    5. Two $2,000 notes, indorsed by Stebbins and Godwin, being shown, they must be presumed to be the two notes in question, until some other $2,000 note is proved. But no other $2,000 note is proved; and no evidence is given, to repel the presumption, that the notes were given for the purposes stated to the witness Laing, and disclosed by the notice of special -matter in the successful defense to the suit by Stebbins on the $2,000 note paid by him.
    Upon the naked facts proved, and offered to be proved, no jury could find that any other $2 000 note had ever been made or indorsed by the-defendants.
    
      II. Upon the facts so proved, and offered to be proved, Stebbins’ liability was clear. All evidence offered to show such facts was competent, and all the exceptions to its exclusion were well taken. The exclusion was for irrelevancy, and the evidence was all relevant.
    The nonsuit should be set aside, and a new trial granted.
    
      Frederick A. Lane, for the defendants.
    I. The judgment recovered by the Dry Dock Bank against plaintiff was not competent nor relevant, and was properly excluded.
    I. The general rule is, that the verdict must be between the same parties, or those claiming under them. (Lawrence v. Hunt, 10 Wend., 80; Jackson v. Wood, 8 id., 35; Duchess of Kingston’s Case, 20 How. St. Tri., 578; Phillipps on Evidence, 4th Am. ed., p. 17, vol. 2; Dale v. Rosevelt, 1 Paige, 35.)
    II. The judgment in the suit of Stebbins, the defendant, against the plaintiff, was incompetent and irrelevant, and was properly excluded.
    1. See eases cited above.
    2. A verdict and a judgment are not evidence, unless it be on the same point. (Maybee v. Avery, 18 John., 352.)
    3. The judgment could not be offered in evidence, unless the subject-matter of this suit was directly in issue in the former suit, and the verdict necessarily involved a determination of the rights of the parties upon the particular subject-matter of this controversy. (Oases cited above; Manny v. Harris, 2 John., 24; Dunckel v. Wiles, 1 Kern., 420.)
    III. The question put to the witness Dikeman, and the evidence offered to be given in connection therewith, were properly excluded.
    1. The best evidence must always be given. The record is the best. “ A writing would be better than a parol contract, a deed better than either, and a record better than all.” (Phillipps on Ev., 4th Am. ed., pp. 567,581, vol. 1; Ingram v. Hall, 1 Hayw., 193, 206; Cooper v. Watson, 10 Wend., 202; Webb v. Alexander, 7 id., 281.)
    IV. The question, what was the issue in the suit of Stebbins v. Treadwell, was properly rejected. (Cases cited under last point.)
    
      V. The offer of evidence made by plaintiff’s counsel was properly excluded by the Court, so far as the same related to the matters controverted on the trial in the suit of Stebbins v. Hh-eadwell. (Cases cited under all above points.)
    VI. The Court properly excluded the offer to reexamine the witness Laing, inasmuch as it was an offer to examine him anew to matters theretofore inquired of, and the witness had already been exhausted.
    The motion for a nonsuit was properly granted, and the bill of exceptions should not be sustained.
   By the Court—Woodruff, J.

To entitle the plaintiff to recover, he was bound to prove that it was the duty of the defendants to pay, for his exoneration, a note which was dated January 21, 1834, made by the plaintiff payable to the order of the defendant Godwin, and indorsed by him and by the defendant Stebbins.

The declaration contained nothing but the usual money counts in use under our former system of practice; and the ground, and sole ground, on which the plaintiff claimed to recover was that the defendants were bound to take up that note for $1,500, and indemnify him against the same, and, not having done so, the plaintiff, who had paid the same, was entitled to recover the amount thereof with interest, as for so much money paid to the use of the defendants.

It is obvious that the very face of the note is evidence that the plaintiff, and not the defendants, was bound to pay the note.

The plaintiff, therefore, before he could ask to have his case submitted to the jury, was bound to give evidence which overcame the presumption arising from the plaintiff’s own signature and promise, and establish, with reasonable certainty, or, at least, probability, that the defendants were bound to pay it.

To this end he showed that it was one, and the last, of a series of renewals of a note for $2,000, dated May 14, 1833, made by himself payable to the order of the said defendant Godwin at sixty days, and indorsed by Godwin and by Stebbins, upon which, on or prior to the 19th of November, 1833, $500 was paid; which note was discounted at the Dry Dock Bank, in which the defendant Stebbins was a Director, and the proceeds of which, when so discounted, were placed to the credit of the plaintiff.

The fact of the successive renewals by the parties, coupled with the fact that the plaintiff received the proceeds of the discount, was, we think, sufficient to alter somewhat the presumption arising from the face of the note that the money was due thereon to the payee, but not to show, in any degree, that the plaintiff was not bound to pay it. On the contrary, the transaction indicated that Godwin and Stebbins had indorsed the note for his accommodation and benefit, and that he, receiving the proceeds on the discount thereof, was bound to pay it, not only in discharge of his own liability, but for their protection and exoneration.

The plaintiff, in further proof of the case he desired to establish, produced another note, dated November 11, 1833, for $2,000, made by the plaintiff payable to the order of Godwin and indorsed by the defendants Godwin and Stebbins, and proved that, in the years 1834 and 1835, Stebbins was called upon, as indorser, to pay this last-mentioned note to the then holder thereof; that, in the conversations then had, the defendant “ Stebbins said that he and Mr. Godwin were to supply $3,000 as Mr. Taylor’s part of the capital in the partnership with Mr. Treadwell. He observed that, if he paid this note for $2,000, in addition to another note for $2,000, he would have advanced $1,000 more than he was to advance.”

This conversation tended, unquestionably, to prove that at some time prior to the date of such conversation, the defendants, Stebbins and Godwin, had agreed to advance for Mr. Taylor the sum of $3,000, to be contributed as his part of the capital in a copartnership with the present plaintiff—but when or how it was to be contributed — when the partnership was formed—or whether the partnership still continued—it was not shown. Nor did the conversation sufficiently show, that indorsing the note now in suit, or agreeing to pay it for the plaintiff, was the mode in which the advance was agreed to be made, while all the other circumstances indicated the contrary. If this note was made and indorsed as a means of raising that capital, the defendants should have been the makers instead of indorsers of the note.

The defendants may have made the agreement testified to, and may be liable if they have not performed it, but proof of such liability did not warrant any finding that they agreed to take up or pay the plaintiff’s individual note. Nor can the conversation be construed into an admission that the defendants ever agreed to pay the plaintiff’s notes to any amount.

Nor is it apparent how paying the plaintiff’s nóte, the proceeds of which he had received individually, would, upon any facts proved by the plaintiff, have been performance of an agreement to contribute capital to a copartnership between Treadwell & Taylor.

Upon the evidence given and received at the trial, we think there was nothing which would have sustained a verdict that the original note dated May 14th, 1833, for $2,000, or the renewal thereof dated January 21, 1834, for $1,500, was a note which the defendants had agreed to pay.

But the plaintiff, on the trial in further support of his claim, produced a judgment record in a suit upon the $2,000 note mentioned by the witness with whom the conversation above stated was had. That note, after such conversation, came to the hands of the defendant, Stebbins, (presumptively by his taking it up in discharge of his liability to the holder as the indorser thereof,) and he, Stebbins, brought his action thereon against the present plaintiff, as maker. The suit was defended on the ground that the said note was made by the plaintiff, Treadwell, at the request of the defendants, Stebbins and Godwin, to enable them to raise a part of the sum of $3,000 which they had promised and agreed to furnish to the said Taylor, then a partner with the plaintiff, transacting business under the firm name of “ Francis C. Treadwell," to be used and employed as a part of the capital in the said business; and that the defendants, Stebbins and Godwin, agreed that they would pay the said note to the holder thereof when it should become due. The plaintiff offered this record in evidence, and offered to prove that the only matter controverted on the trial of that action was the matter so set up as a defense. The record showed a verdict for Treadwell, and a judgment in his favor (¡hereon.

The'record and this further evidence was rejected.

Now unless there was some proof warranting an inference that the note given in May, 1833, was given upon the same consideration as the note given in November, 1833, proof that the latter was an accommodation note made by the defendants’ request, and to enable them to raise money, would not alone show that the note given in May was an accommodation note also. And yet if there were circumstances tending at all to prove such an identity, the proof relating to the November note might tend to destroy any supposed improbability, arising from the order of names upon the .note, that such an agreement was made, and included the May note.

The record and the evidence offered in connection therewith would have established the material fact that there was an agreement by the defendants to advance $3,000 to Taylor, to be used as capital by the firm mentioned. And that a part of such advance was raised by the making, by Treadwell at their request, of a $2,000 note which was used to enable them to raise the money. And if there was evidence, though slight, tending to show, that the previous note was made for the same purpose, the record and the testimony offered in connection therewith, should have been received,

Where two notes are given upon a single consideration, and one has been put in suit and facts directly in issue, which if true must affect both notes alike, are established by verdict and judgment, the verdict and judgment are evidence of those facts in a suit between the same parties on the other note. (Gardner v. Buckbee, 3 Cow., 120; Burt v. Sternburgh, 4 id., 559.)

If therefore this evidence had been received, the only inquiry would have been, Was the May note given upon the same consideration in whole or in part? And has the plaintiff paid or provided for the one-half part as to which there is no pretense, that it was not made for his own benefit.

While we feel that the testimony is slight, we think that upon the reception of the evidence, which, as above suggested, was in its nature relevant and competent, the plaintiff would have been entitled to submit the question to the jury. The conversation with the witness Laing may be understood as fairly importing, that the defendants were to supply the $3,000, and that the advance they were to make had some connection with two notes, each for $2,000, and that the advance had not then been made, and that Stebbins’ hesitation, in regard to paying the note presented to him, was because he did not wish to pay $2,000, and remain liable for another amount greater than he had agreed to advance. The conversation indicates that in the mind of Mr. Stebbins a payment of the $2,000 note would have been equivalent to an advance of $2,000, towards the $3,000 which he was to advance. It is true that standing alone it does not show that the advance was agreed to be made by paying the sum specified upon the notes of the plaintiff, but in connection with the rejected evidence, which showed that one of the notes was in fact made as a means of raising so much of the $3,000, it would not be against evidence to infer that the whole $3,000 was raised in the like manner, and that the objection which at the time of the conversation existed in the mind of Mr. Stebbins, was obviated by the plaintiff who apparently had already reduced the May note to $1,500, and afterwards furnished Stebbins two small notes, amounting to another $500, which were paid in May, 1854.

We cannot say that these proofs are conclusive, or that it can be inferred from the mere fact that the November note was made for the defendants’ • accommodation, that the May note was so made. If there was in 1834 or 1835, or at any time after the November note was given, any other note outstanding to which the conversation may have related, the proof seems to us to fail entirely.

But, as the case stands, we think the Judge erred in rejecting the evidence offered, because, if it had been received and it had established what it was proposed to prove, the doubt of the plaintiff’s right and of the defendants’ liability would have made the case a proper one for the jury to determine upon the questions of fact.

We feel the force of the suggestion that the case savors strongly of staleness, and that the circumstances seem to indicate that the claim that this May note was an accommodation note is an ingenious expedient to effect indirectly a recovery under an agreement alleged to have been made twenty-seven years ago, and more than thirteen years before this suit was brought, when the statute had long barred any action thereon. But this circumstance, if it be of force, may properly be addressed to the jury in connection with the other facts.

The propriety of suffering the plaintiff to recall his witness after he had been once examined, is to be determined by the Judge at the trial. As the general rule, it is a matter resting in his discretion; and, unless it be quite palpable that that discretion was unwisely exercised, and injustice has been done, the refusal of the Judge to permit a further examination would not furnish ground for ordering a new trial. It may sometimes be perceived by the Judge that the discussions in the progress of the trial, after the party has examined his witness, have had the effect of instructing the witness as to the very point and pinch of the case, and have informed him just what the party wishes him to testify. This—and, if he be a willing witness, other circumstances which may be quite apparent to the Judge who sees the witness and his manner of testifying—may suggest to him that there would be great danger of injustice if the party be permitted to recall him to meet an exigency. We see nothing of the kind on this trial; and, so far as appears on the Case, the Judge might well have suffered the witness, Mr. Laing, to be recalled and examined further by the plaintiff.

It is further insisted by the defendants that, as this action is brought against the defendants upon an alleged joint liability, that joint liability must be established by proof that is competent as against the defendant Godwin; and no evidence of Stebbins’ admissions could affect him: that there was, therefore, as against Godwin, no evidence whatever of his liability, and, of course, no joint liability was proved, and the nonsuit should be sustained.

As the action was brought and tried before the Code was enacted, this question must be disposed of as the law then stood. The defendants’ proposition, however, as the issue was presented, is not sound, to the extent claimed. It is true that the plaintiff was bound to prove a joint liability; and, had the defendant Godwin appeared and defended, he must have proved it by evidence which was competent proof as against Godwin.

But when one of two joint defendants makes default, or is not served with process, it is enough, on the trial of the issue made by the other, to show, by evidence good as to the latter, that he is liable, and liable jointly with his co-defendant; and this may be done by his own admission, in Court or out of Court. If, therefore, in this case, the plaintiff had shown, by the admission of the defendant Stebbins, or otherwise, that he (Stebbins) was liable jointly with Godwin,.it would have entitled him to judgment, although the evidence was such as would not, as against Godwin, (had he defended,) have been competent to show that he was liable at all. (Halliday v. McDougall, 22 Wend., 264; Downing v. Mann, 3 E. D. Smith, 36.)

A new trial must be ordered; costs to abide the event.  