Story, J.
delivered the opinion of the Court us follows:
The present action was brought by the Plaintiffs in error as joint owners of the brig Active and cargo to •compel the Defendant who was master of the said brig to account for the proceeds of said cargo, which was sold during a voyage to the West Ijndies. Young owned three eighths, Deblois three eighths, and LawraSon two eighths .of the cargo.
At the trial upon the general issue several exceptions were taken by the Plaintiffs, which have been argued, and we are now to pronounce our decision respecting their validity.
The Defendant offered in evidence a. record of a former suit between the same parties, in which judgment was rendered for the Defendant, supported by parol proof that the former suit was for the same cause of action as the present suit. The Plaintiffs denied its admissibility under the general issue; and we are all of opinion that the objection cannot be supported.
It has been long since established that under non assumpsit the Defendant may give in evidence any thing which shows that no debt was due at the time when the action was commenced, whether it arise from an inherent defect -in the original promise or a subsequent discharge and satisfaction. And the precise point now in controversy has been adjudged to be completely within the rule. If the former judgment had been for the • Plaintiff, there would be no doubt that it would have extinguished the demand; and it is not less conclusive because it was for the Defendent. The controversy had passed in ran judicatam, and the identity of the causes of action being once established* the law would not suffer them again to be drawn into question.
The second exception was taken to the decision of the Court admitting evidence to show that the Defendant had a subinterest in that portion of the joint cargo which belonged to Lawrason — an interest which was not proved to have been known to or acknowledged by the other owners. And we are all of opinion that the Circuit Court erred in admitting that evidence. The other owners liad nothing to do with any private contract between Lawrason and the Defendant. Any right of retainer which the latter might have against Lawrason could be enforced only in an action against Lawrason himself; but it offered no legal defence to the express contract proved to have been made with all the joint owners. It might have been contended with as much propriety that the Defendant was entitled in such an action to a set off of a separate debt due from either of the owners. Nor is there any equity in Such a claim against the Plaintiff's. As joint owners they had-a lien upon the proceeds for the general balance bgtweerc them; and had a right to have them applied in the first instance in. discharge of the joint debts. Whether,.after a final settlement of the accounts of the voyage, any thing would have beep due to Lawrason does, not appear; and yet this evidence, adinitted as it was, would have applied the general property to discharge his private contracts, although the joint account might have finally turned out against him. We hold it a sound rule of law, that' a joint contract can never be defeated by the mere private._cont.ract of an individual of the concern, to whom the other parties have confided no authority for this purpose.. Our opinion on this exception disposes also of the third, which is taken to parol evidence offered to show- the acknowledgment of Lawrason of the subinterest of the Defendant.
The last exception is of a novel character. The Plaintiffs upon the whole eviden c offered to demur, and prayed the Court to compel the Defendant to join in the demurrer. The Court refused to do this, anil in our opinion their refusal was perfectly correct.
A demurrer to. evidence is an unusual proceeding, and is allowed or d?nicd by the Court in the exereise of a sound discretion under all the circumstances of the cage. -The party demurring is bound to admit as true, not only all the fact's proved by the evidence introduced by the other party, but also all the facts which that evidence legally may conduce to prove. It follows that it ought never to be admitted where the party demurr ng refuses to admit the facts which the other side attempts to prove; and it would be. as little justifiable where lie offers contradictory evidence, or attempts to establish inconsistent propositions. In the present case, the Plaintiffs admit that they denied the whole defence of the Defendant, and offered evidence to contradict the evidence by which that defence was attempted to be supported. There would therefore have been the-, most manifest impropriety in acceding to the prayer of the Plaintiffs. •
The Court give no .opinion whether a refusal to compel a party to join in a demurrer to evidence can in any case he assigned for .error.;
On the whole, for the .error of the Circuit Court in admitting the evidence disclosed under the second and third exceptions, the judgment must be reversed and the cause remanded with directions to award a venire facias de novo.
Livingston, J.
I concur with this Court in reversing the judgment of the Circuit Court, and for the error assigned in the second exception. But I give no opinion on the refusal of that Court to compel the Defendant to join in the demurrer to evidence which was offered by the Plaintiffs, not because 1 have any doubt of the correctness of the. decision which a majority of the judges have formed on that point, but because I entertain a very strong conviction, and think it.my duty to express it, that such refusal can never be the subject of revision upon a writ of error — the contrary of which seems to be implied by the opinion-just read. Such applications must eV- r be made to the discretion of the Court which tries the cause, and such Court will generally be in a situation to decide more correctly, having all , the circumstances of the case before it, than an appellate tribunal.; and if it should commit a mistake in the exercise of its mere discretion in refusing to compel a party to join in a demurrer to evidence, or in refusing to grant a new trial, or in refusing to continue a cause, or in any other matter resting solely in discretion, I have no hesitation in saying that less mischief and injury will arise from obliging parties now and then to submit to such, inoonveniencies, than to open a door to the endless litigation which will be produced by permitting, appeals in all the variety of cas-s of this nature which must necessarily arise in the progress of every contested action, and which in Great Britain have never yet been assigned for error.
Johnson, J. said he did not wish it to be understood that a writ of error would lie to a decision within the discretion of the Court below.
Story, J. said he did not mean to be understood, in delivering the opinion of the Court, as stating that the refusal to compel a partv to join in demurrer to evi dence was a ground for a writ of error. He concurred in opinion with judge Livingston.
Mah.sk atx. Ch. J. On that point the Court has not given any opinion. The former opinions of this Court on the subject of discretion, &c. are to be considered as law; but they are not to be extended further.