delivered the opinion of the Court.
This case presents two questions ; — 1. whether the verdict in the case of Clark against the present plaintiff is conclusive against the defendant as to the question of his interest and property in the notes on which that action was founded, and 2dly, whether the instructions of the Judge touching the other points respecting the defence were correct. As to the first point, it is a general rule that a verdict cannot be evidence for either party, in an action against one who was a stranger to the former proceeding ; who had no opportunity to cross examine witnesses or to defend himself or appeal from the judgment against him. On this point authorities are needless. But the inquiry is, was Haines a stranger to the former proceeding ? Clark was the plaintiff on record in that case; but it is not denied that the suit on the notes lodged with him and payable to Clark, was commenced and prosecuted at the expense and for the benefit of Haines. He therefore does not come within the reason of the rule ; inasmuch as he had an opportunity to cross examine witnesses and conduct the suit according to his own judgment. In this view he would seem as much bound by the former verdict, as though he had been an indorsee of the notes and had sued them in his own name ; and that verdict was founded on a want of interest and property in him, which would prevent the operation of Clark’s discharge of the notes. In the case of Calhoun v. Dunning 4 Dal. 120, it was decided, that when the parties are really, though not nominally the same in both cases, as when one suit is in the name of the person beneficially interested, and the other is in that of his trustee, the record in the first case was evidence in the last. That case appears tobe similar to this, on the point under considera-*367tio/i But it has been urged that the principle cannot be applicable in this case, because the record of the former case does not show that the question in relation to Haines’ interest was decided against him ; but that the fact appears only from the statement of the conversation held between the Court and the jury ; — still it appears by the report that the proof of the above facts was introduced without objection and is now before us ; and perhaps we are authorized, on that account, to give it the same effect, as though it ivas apart of the record ; however, we give no definite opinion on this point ; but place our decision of the cause on another ground; and without reference to the question of Haines’ interest and property in the notes beforementioned. Supposing he had no such interest, is the present action maintainable ? Do the facts proved support the declaration ? If not, we ought to render judgment on the verdict, even if the opinion of the Judge was erroneous on the point of Haines'1 interest and the conclusiveness of the former verdict. The charge in the first count is that the defendant maliciously instituted and prosecuted the plaintiff, on the notes mentioned, knowing the same to have been paid. The second count states that he prosecuted the suit on the notes without any authority, knowing the same to have been paid to Clark. Both counts charge the defendant with gross misconduct and a wanton abuse of legal process. The counsel for the plaintiff, in his opening, waived all observations on the first count and admitted that it could not be maintained ; inasmuch as the case shews no malice on the part of the defendant in the prosecution of the action. He was doubtless satisfied of the propriety of so doing by the authorities, adduced by the counsel for the plaintiff, which seem satisfactory upon that point. But it has been contended that the charge contained in the second count is supported by the proof. The Judge instructed the jury that from the facts, it appeared the defendant had probable cause for believing he was legally authorized to commence and prosecute the suit, though by law he might not have had such authority, and therefore that fhe defendant was entitled to their verdict. An examination of the facts will shew whether this opinion was correct.
It is true that the defendant knew that Clark had given a receipt or discharge, of the notes, bearing date May 19, 1821; and *368because he doubted Clarkes right to give such a discharge, and the fairness of the transaction, he had refused to deliver up the notes to Rogers , — but some other facts demand attention. It is also true, that at the time said receipt bears date, and before Clark was well known to be insolvent, and it appears that after Rogers had obtained the receipt, he stated to one of the witnesses that he “gave Clark ten dollars to sweeten it; and that Clark did not care.” These expressions cannot be misunderstood ; they evidently mean that for such a trifling sum paid to Clark, the discharge had been obtained, and an order on Haines for the notes. Besides, Mr. Orr has testified that he saw a letter from Rogers, the plaintiff in 1818 or 1819, in which he stated that Clark had no right or interest in the notes ; and yet with this knowledge, he procures the discharge from this very man in 1821. It is true, there is no direct proof that these declarations had been communicated to the defendant, but he certainly knew that the purpose for which they had been deposited in his hands, had not been accomplished, because the debt, to secure the eventual payment of which they had been deposited, had not then been paid, as appears by the report of the case of Clark v. Rogers 2 Greenl. 143. These circumstances might well give him good cause for believing that the notes were justly due, when he commenced the action, notwithstanding appearances ; and thus the presumption of illegality of intention or conduct is negatived. In addition to all this it may be remarked that Haines might have had knowledge of the above declarations of Rogers, as to Clark’s total want of interest in the notes, and as to the manner in which he had obtained the discharge from Clark ; and this circumstance becomes important, when we attend to the specific charge in the second count. The averment is that the defendant instituted and prosecuted the suit on the notes, without authority and knowing that they had been paid to Clark. It is an entire averment, and the scienter alleged, is an important and substantive part of the charge; and this must be proved, as well as the alleged want of authority. Now, on looking into the report, we see no fact, except the discharge itself, which has any tendency to prove such knowledge ; and the other facts proved in this case shew that the discharge amounts to no evidence of payment; for if not fraudulently obtain*369ed tlie plaintiff of Clark, he knew Clark had no right to discharge the notes, because he had no interest in them according to his own confession. An action of this kind should be maintained by clear and unsuspicious proof. But upon the evidence before us we think this cannot be. We have not deemed it necessary to attend to the principles of law particularly applicable to this second count; or to inquire whether its averments go far enough; because we are satisfied that it is not supported by any sufficient evidence, even as it now stands; and accordingly our opinion, is that there must be judgment on the verdict.