Ev. 185, 6. The judgment of a competent tribunal is not evi-
dence of any matter to be inferred by argument from the judg-
ment, Ib. 190-1, 195-6, 198-9. the former judgment must
be final and conclusive. 4 Starkie's Ev. 205. The judgment
in the New York suit, wanted nearly all these requisites. 1
Phillips's Ev. 230, 142 ; 4 Starkie's Ev. 1278. The bill of par-
ticulars here was not proved, and we have no mode of ascertain-
ing whether it is genuine or not. Until it is proved, there is
no mode of ascertaining whether the former judgment related to
the same subject-matter.
5 and 6. As to the disaffirmance of the agency, and the want
of notice to F. Depau. Nott & Co. were not entitled to notice,
and if they were, it should be remembered that the letter of the
4th of October, 1828, promised an account-sales, for which the
plaintiff had a right to wait without disaffirming the sale. 1
Livermore, 50; 12 Johns. 300, does not fully bear out the point
stated by Livermore. 1 Johns. 110; 1 Caines, 539, 589; Cur-
cier v. Ritter, 4 Wash. C. C. Rep. 553, 569. For what purpose
the principal waited before disaffirming the agency, is a question
312
March 29, 1833.] OF PENNSYLVANIA. 279
[Marsh v. Pier.]
for the jury. But besides, there was notice on the 1st of De-
cember, to C. Price & Morgan, and to Captain Longcope. As
to notice to Depau, the plaintiff was not called on to give it ;
indeed if he had, it would have looked like an affirmance of the
agency. Suppose the draft had been negotiated, as it probably
was, what would be the eifect ?
7. As to the allowance of freight and charges, the case of
The Fanny, 9 Wheatou, 658, is a peculiar case of prize law.
The logwood was not chargeable with freight, as no freight was
paid on it, (the Hercules belonging to C. Price & Morgan,) and
was brought to a place' in Philadelphia, where the plaintiff had
no occasion for it, and did not want it. They cited also The
Leander, 5 Rob. Adui. Rep. 67 ; and The Vrow Anna Catharina,
6 Rob. 271.
8. As to the form of the judgment, the case of Easton v.
Worthihgton, 5 Serg. & Rawle, 130, cited on the other side, is
conclusive in our favour. See also, Hosack v. Weaver, 1 Yeates,
478 ; Hardy v. Metzgar, 2 Yeates, 347.
The opinion of the court was delivered by
KENNEDY, J. This was an action of replevin, and was com-
menced on the 27th of November, 1828, in the District Court
for the city and county of Philadelnliia, by the defendant in
error, against the plaintiff in error, for the recovery of ninety-
seven tons of logwood, claimed by the plaintiff below as his
property, to which the defendant there, by his plea, put in on
the 25th of March, 1829, also asserted his right of property.
Issue was joined on the plea of property alone, after which the
cause was tried by a jury, on the 21st day of April, r^oorv-i
*1832, and a verdict given in favour of the plaintiff for L
three thousand and forty-seven dollars thirty-nine cents damages,
upon which the court rendered a judgment in favour of the
plaintiff, for the amount of the damages so found by the jury,
and his costs.
On the trial of the cause in the District Court, the plaintiff
there, in order to establish his right of property in the logwood,
gave in evidence, that in the beginning of September, 1828, it
was purchased of the owners thereof for him at Tabasco, and
put on board of his vessel, the brig Sally Barker, then at that
place, and under the care of John H. Marshall, employed by
Sylvester Pier, the plaintiff below, as the captain and master of
the brig, to bring her with the cargo to the city of New York,
where the plaintiff then resided. Three or four days after the
captain sailed from Tabasco, with the logwood as his cargo, he
fraudulently, as was alleged by the plaintiff, and under a false
pretence of the brig's being leaky and unfit to make the passage
313
280 SUPREME COURT [Philadelphia,
[Marsh v. Pier.]
good to New York, changed his course and went to New Orleans.
There he had a survey made of the vessel, which was condemned.
He placed her with the logwood under the authority of William
Nott and John Parker, commission merchants at that place, to
be sold by them. The logwood weighing in all ninety-seven
tons thirteen hundred three-quarters and fourteen pounds, was
sold by these gentlemen to Samuel P. Morgan & Co., at seven-
teen dollars and fifty cents per ton, who transmitted it by the
ba"k Hercules to Philadelphia, consigned to Messrs. C. Price
& Morgan, of that place. It arrived there about the 28th of
October, 1828, and about five w r eeks afterwards was sold by these
last-named gentlemen to the defendant below, James Marsh,
at twenty-six dollars per ton cash. On the 30th or 31st of
the same October, Sylvester Pier, the plaintiff, residing still at
New York, received a letter from William Nott & Co., advising
him of their having sold the logwood, at seventeen dollars and
fifty cents per ton cash, and of the disposition made of the pro-
ceed thereof by them. On the 1st day of November, then next
following, Sylvester Pier, having come to Philadelphia, found
the logwood there on board the bark Hercules, and immedi-
ately caused a written notice to be given to William Longcope,
the captain of the Hercules, and likewise to Messrs. Price &
Morgan, that he claimed the logwood as his property, and at
the same time demanded the delivery of it, and forbade them to
dispose of it to any other, as he would hold them responsible to
him for it.
The defendant below, on the trial of this cause, in order to
sustain his plea, among other things, offered to read in evidence
to the jury the exemplification duly certified, of a record of a
judgment rendered in the Superior Court of the city of 'New
York, in favour of William Nott above named, in a suit brought
by Sylvester Pier, the plaintiff below in this case, against him
and John Parker, above named, the latter of whom was returned
by the sheriff upon the writ of capias ad respondendum, com-
mencing the suit, " not found." The cause of action as set forth
r*9811 ^ n ^ s exem pli n ' ca ti n is contained in nine counts. *the
J first of which, after stating that William Nott and John
Parker, as the agents of the said Sylvester Pier, took posses-
sion of the vessel, called the Sally Barker, and cargo, consist-
ing of one hundred tons and upwards of logwood, of the value
of three thousand dollars, for the purpose of taking care of and
preserving the same for the said Sylvester Pier, and in consid-
eration of a reasonable reward to be paid to them, they under-
took and promised the said Sylvester Pier to take care of the
vessel and cargo, to keep the same safely for him, and to deliver
the said vessel and cargo to him, when they should be thereunto
314
March 29, 1833.] OF PENNSYLVANIA. 281
[Marsh v. Pier.]
afterwards required ; yet the said Nott and Parker did not take
due and proper care of the said vessel and cargo, or either of
them, or any part thereof, or deliver the same to the plaintiff,
but on the contrary, without necessity or justifiable cause, and
contrary to their duty and promise, and against the will of the
plaintiff, on the 10th day of October, 1828, at New Orleans,
caused the said vessel and cargo to be sold, whereby the said
vessel and cargo became and were wholly lost to the said Sylves-
ter Pier.
The second and third counts, are for breaches of promises
nearly of the same import as in the first count, except that it is
not alleged that the defendants sold the vessel and cargo.
The fourth count, is upon a promise stated to have been made
by the defendants to the plaintiff, that they in consideration of
his having delivered to them, at their request, the logwood, of
the value of three thousand dollars, and having made i promise
to pay them a reasonable reward, would take care of the log-
wood and reship it at New Orleans on board of some vessel
bound for New York, for and on account of the plaintiff, which
they failed to perform, whereby he lost the whole of it.
The fifth count, is for a breach of promise in respect to the
vessel alone, which is alleged to be of the value of two thousand
dollars.
The sixth count, is upon a promise stated to have been made
by the defendants to the plaintiff, to account to him for divers
goods and merchandises belonging to him, of the value of five
thousand dollars, delivered to them at their request by the plain-
tiff, to be sold and disposed of by them for him, and which they
accordingly sold at New Orleans, on the 20th of October, 1828,
amounting in the whole, to five thousand dollars, but failed to
account for the same.
The seventh count, is for a breach of promise to account for
other goods of the value of five thousand dollaus, put into the
hands of the defendants by the plaintiff.
The eighth count, is upon a promise to pay five thousand dol-
lars lent, five thousand dollars paid, laid out and expended, and
the like sum had and received.
The ninth and last count, is upon an account stated, in which
it is averred, that the defendants were found indebted to the
plaintiff in other five thousand dollars.
To this exemplification being read in evidence to the jury, the
counsel for the plaintiff below objected ; and the court thereupon
""overruled the evidence; to which opinion of the court r*9ooi
the defendant below excepted and has assigned it here, L
as the ground of his third error.
315
282 SUPREME COURT [Philadelphia.
[Marsh v. Pier.]
The defendant below, then offered to read in evidence to the
jury, the same exemplification in connection with a writing
purporting to be a bill of particulars, drawn up in the following
terms, to wit :
"Sylvester Pier v. William Nott and John Parker. Bill of
particulars of the plaintiff's demands under the sixth, seventh,'
eighth, and ninth counts of his declaration, reserving to himself
the right to recover damages under all or any of the preceding
counts.
"1828. October 3d. Value of the brig Sally Bar-
ker, John H. Marshall master, her sails,
rigging, tackle, and furniture, arrived at
New Orleans from Tabasco, and put un-
der the defendants' care and control at
New Orleans, at or about this date, to
be sold and disposed of by the defend-
ants, and to be accounted for by them to
the plaintiff, $1,500 00
"One hundred tons of logwood, which ar-
rived in the said vessel and composed
her cargo, also put into the hands of the
defendants, or under their care and con-
trol, to be sold and disposed of, and to
be accounted for by the defendants to
the plaintiff. Value of the same at
twenty-eight dollars per ton, .... $2,800 00
"October 10th. Cash received by the. defend-
ants for 97 tons 13 cwt, 3 qrs. 14 Ibs. log-
wood belonging to the plaintiff, and sold
by the defendants to S. P. Morgan &
Co., at New Orleans, at $17.50 per ton, $1,709 65
"October 20th. Balance of account stated and
rendered by the defendants to the plain-
tiff, dated New Orleans, 20th October,
1828, being account of sales, and net
proceeds of logwood, received by the
brig Sallie Barker, from Tabasco, . . $1,589 42
"October 22d. Cash received by the defend-
ants from sales of the hull, masts, sails,
and rigging of the brig Sally Barker,
belonging to the plaintiff, $441 88
"Money had and received by the defend-
ants, at New Orleans, to and for the use
of the plaintiff, $2,020 25
316
March 29, 1833.] OF PENNSYLVANIA. . 282
[Marsh v. Pier.]
"Balance of an account, stated by the
defendants, to and with the plaintiff,
dated New Orleans, 22d October, 1828, $2,020 25
"Interest on the above sums respectively,
"W. T. M'CouN,
"Attorney to the plaintiff."
*The reading of the exemplification in connection
with this bill of particulars in evidence to the jury, was
also objected to by the plaintiff's counsel, and the evidence
overruled by the court, and exceptions taken thereto by the
defendant below, which is the ground of his fourth error as-
signed.
As the first, third, fourth, and eighth t rors assigned are all
that I intend to notice, by giving my own opinion on the first
and eighth, and that of this court on the third and fourth, it is
deemed unnecessary to state further the proceedings had on the
trial of the cause in the court below.
Upon the first, second, fifth, sixth, seventh, and eighth errors,
which embrace all that have been assigned after the third and
fourth, this court, owing to the great press of business and want
of time, have come to no settled conclusion, but thinking it prob-
able that the opinion which they have formed on the question
involved in the third and fourth errors may determine this case
finally, have therefore thought it advisable to delivei it, that
there may be no unnecessary delay in having an end put to the
controversy.
The first error assigned, is, that the District Court refused to
permit the counsel of the defendant below to commence and
conclude the argument to the jury after the testimony on both
sides was closed. It has been contended, that as the only plea
put in and relied on by the defendant is that of property, which
is purely affirmative, he was therefore entitled to the conclusion
in summing up and addressing the jury. Although in most cases
where the defendant pleads merely an affirmative plea, he is, by
the course of practice, entitled to the conclusion, because gen-
erally it throws upon him the onus probandi, yet the plea of prop-
erty, as I apprehend, does not produce this effect in the action
of replevin. The plaintiff, I think, must, notwithstanding, first
prove that he has a right to maintain his writ of replevin, by
showing that he lias either an absolute or special property in
himself. Co. Litt. 145 ; Bui. N. P. 52. In this respect the ac-
tion of replevin is different from trespass, which may be sup-
ported against any one who has no right, by him who has the
possession. Waterman v. Robinson, 5 Mass. II. 303. Hence
property in a stranger is pleadable in replevin either in bar or
317
283 SUPREME COURT [Philadelphia,
[Marsh v. Pier.]
in abatement. Salk. 5, 94 ; s. c. Ld. Raym. 984 ; Cro. Jac.
519; Garth. 243; 6 Mod. 69, 81, 103; 2 Lev. 92; 1 Ventr.
249 ; Gilb. on Rep. 127-8. So if the defendant plead property
in himself in abatement, he does not thereby confess the caption,
but only shows that the plaintiff hath not a right to the deliver-
ance. Gilb on Rep. 127. And more especially must this be so
in Pennsylvania, where the action of replevin may be maintained
by the plaintiff to recover the possession of goods and chattels
to which he is entitled as owner in all cases, as well where the
defendant came by the possession of them lawfully, and with-
holds it from the plaintiff unlawfully, as where he got, it torti-
ously ; and consequently the plea of property, although it be the
only plea put in by the defendant, cannot be considered as an
r*9S4l admission by him that the *plaiutiff ever had possession
J of the goods so as to give him even the colour of title,
much less the right of property, to enable him to support his
action. In Clemson v. Davidson, 5 Binn. 399, which was an
action of replevin, where the defendant pleaded property, the
late Chief Justice of this court says, "it is true, that notwith-
standing his (the defendant's) plea, it is necessary for Clemson
(the plaintiff) to show property in himself." Seeing, then that
the burthen of proof still lies upon the plaintiff in replevin, not-
withstanding that the defendant relies solely on the plea of prop-
erty, I am inclined to think that the order of the court below was
in conformity to the rule of practice in this particular. But
had it been otherwise, I am not prepared to say that it would
have been good cause for reversing the judgment upon writ of
error.
The third error assigned, is, in the decision of the court be-
low refusing to admit in evidence the exemplification of the rec-
ord of the judgment rendered in the Superior Court of the city
of New York, which was offered for that purpose by the plaintiff
in error. This court is clearly of opinion, that it ought to
have been admitted in evidence, and that the court below erred
in rejecting it. It was offered in evidence by the defendant be-
low, to show that the right or title of the plaintiff below to the
logwood in question in this action, was decided against him upon
the trial of a suit in the Superior Court of the city of New York,
which was commenced and prosecuted therein by him against
William Nott and John Parker, from whom the defendant below
claimed to derive his right of property to the logwood, by means
of a sale made of it by Nott and Parker as the agents of the
plaintiff below.
From this exemplification of the record of the judgment of the
Superior Court of the city of New York, it is manifest that the
value or price of the logwood which forms the subject-matter of
318
lfarcA29,1833.] OF PENNSYLVANIA. 284
[Marsh v. Pier.]
the dispute in this action, was a part of the claim of the plaintiff
below in his suit against William Nott and John Parker in that
court. They sold the logwood to Samuel P. Morgan & Co., who
shipped it on board of the bark Hercules consigned to C. Price
& Morgan at Philadelphia, who sold it again to the plaintiff in
error.
Now, as the sale of logwood by Nott and Parker at New Or-
leans, when, as is admitted by both parties, it was the property
of Sylvester Pier, and avowedly sold by them as such, are facts
alleged and admitted on both sides in this action, it necessarily
follows, that on the trial of the cause in the Superior Court of
the city of New York, either the authority of Nott and Parker
to make this sale, and that they had faithfully accounted to Pier
for the proceeds thereof, must have been established to the con-
viction of the court and jury, or otherwise, if made without legal
authority, that they had satisfied Pier for his claim and loss
of property in the logwood, in some way, so that he was not en-
titled to recover of them in that action. And it appears to me,
that being decided against Pier, on either of these grounds,
he was thereby precluded from the further maintenance of
*this action. In short, I am unable to perceive any r*oQ5l
ground upon which that action could have been deter- *-
mined, as it appears from the exemplification of the record to
have been, that would not have made it a bar to the further
prosecution of this suit by him. The evidence to support both
actions was the same ; that being so, the cause of action must be
the same, notwithstanding the actions are grounded on different
writs. This was held in Kitchen v. Campbell, 3 Wils. Rep. 308,
to be the test by which we are to ascertain whether a final de-
termination in a former action is a bar or not to a subsequent
action ; and it is there said, that this principle runs through all
the cases in the books, both in real and personal actions. It was
resolved in Ferrers' Case, 6 Co. 7, " That when one is barred in
any action, real or personal, by judgment upon demurrer, con-
fession, verdict, &c., he is barred as to that, or the like action of
the like nature for the same thing forever," for expedit reipub-
licve ut sit finis Uliiim; which is also supported by another maxim,
nemo debet bis vexari, si constet curice miod sit pro una et eadem
causa. Sparry's Case, 5 Co. 61. In Slade's Case, 4 Co. 946, it
was held, that a judgment in an action of debt was a bar to an
action of assumpsit brought on the same contract. In Bard well
v. Kersey et al., 3 Lev 179, it was decided, that a former action
of trespass by the plaintiff against the defendants was a bar to
a subsequent action on the case for the same cause. Also in
Kitchen v. Campbell, 3 Wils. 308-9 ; s. c. 2 Bl. Rep. 827, it was
ruled, that a judgment rendered in favour of the defendant in a
319
285 SUPREME COURT [Philadelphia,
[Marsh v. Pier.]
former action of trover, was a bar to the plaintiff's recovery in
a subsequent action of assumpsit for money had and received for
the plaintiff's use, from a sale made of the same goods by the
defendant. In like manner a judgment rendered for the defend-
ant in trespass de bonis asportatis, was determined to be a bar
to the plaiutift's recovery in a subsequent action of assumpsit to
recover the money received by the defendant as the price of the
same goods upon a sale made of them by him. Rice v. King, 7
Johns. 20. The principle settled by these, and many other cases,
is, that the plaintiff cannot have a second investigation of the
same original matter when it has passed once in rem judicatam.
And this is in conformity to the rule laid down and deduced by
the judges from the cases on this subject in the Dutchess of
Kingston's Case, 20 State Trials, 535, "that the judgment of
a court of concurrent jurisdiction directly upon the point, is as
a plea, a bar, or as evidence conclusive, between the same parties
upon the same matter directly in question in another court."
From the same cases, as well as others, it may be seen, that
the plaintiff may frequently at his election, bring either trespass,
trover, replevin, detinue, or assumpsit, to recover compensation
for the loss of his goods. Feltham v. Tyrrel, Lofft's Rep. 207,
320; Lamine v. Dorrell, 2 Ld. Raym. 1216; Lindon v. Hooper,
Cowp. 419; 20 Vin. Abr. tit. Trespass, page 540, and the cases
there referred to. And if the plaintiff elects to bring an action
of trespass or trover against the defendant, who has sold his
f*98fi1 gd s without authority, and obtains a ^judgment cover-
J ing the value of the goods, the right of property in
them, I take it, from the weight of the English authorities on
this subject, is thereby changed from the plaintiff, so that he
could not maintain an action afterwards for the goods, against
the vendee of the defendant. Brown v. Wootton, Cro. Jac. 73,
per Fenuer, Justice, " the property of the goods is changed,"
page 74 ; s. c. Yelv. 67-8, and note (1), by Metcalf ; Moore, 762 ;
Adams v. Broughton, 2 Stran. 1078; s. C. Andr. 18; Bull. N.
P. 47; 1 Cromp. Prac. 184. Per Lord Hardwicke, in Smith r.
Gibson, Rep. Temp. Hard. 319. " It is a sale of the thing to
the defendant, which vests the property in him." 3 Starkie's
Ev. part 4, page 1281. So judgment for the plaintiff in replevin
in the detinet for damages*, vests the property of the goods in the
defendant. Moor v. Watts, 1 Ld. Raym. 614; 12 Mod. 428.
In New York, however, it is held, that the property of the plain-
tiff in the goods in such cases, is not changed, until the defendant
shall have paid, or satisfied the judgment, in conformity to the
rule solutio pretii, emptionis loco habetur, which seems to be
sanctioned by what is laid down in Jenk. cent 4, case 88, page
189. Curtis v. Groat, 6 Johnson, 168; Osterhout v. Roberts,
320
JfarcA29,1833.] OF PENNSYLVANIA. 286
[Marsh v. Pier.]
8 Coweu, 43. But in Virginia, in Murrell v. Johnson's Adm.,
1 Henning and Mun. 449, the court seemed to think, that A.,
whose slave had been sold without his authority, by B. to C.,
and by C. delivered to D., having brought an action of detinue,
and obtained a judgment in it against C., could not afterwards
maintain an action of detinue against D. for the same slave,
notwithstanding his judgment against C. still remained unsatis-
fied. So if the plaintiff brings an action of assumpsit, instead
of trover or trespass against the defendant, who has sold his
goods without authority, as he may do according to many of the
foregoing cases, and recovers a judgment, I apprehend that he
cannot afterwards sustain an action of any kind, against the
vendee of the defendant, or any person claiming the goods under
him. And this not merely for the reason assigned in the cases
cited above, but for an additional, and perhaps still more forcible
one, which is, that by thus claiming the money arising from the
sale made of the goods by the defendant, he thereby affirms it,
for the money arising from the sale of the goods is all that the
plaintiff can claim and recover in the action of assumpsit, and
by taking a judgment for it, it does appear to me, that he
thereby ratifies and confirms the sale made of the goods, and he
shall not afterwards be permitted to gainsay it. Omnis ratiha-
bitio retrotrahitur et mandato sen licentice cequiparatur. Lamine
v. Dorrell, 2 Ld. Raym. 1216; Bennitt v. Francis, 4 Esq. Rep.
28. Accordingly, in Brewer v. Sparrow, 7 B. & C. 310 ; s. c.
M. & R. 2, it was held, that a person having once affirmed the
acts of another, who wrongfully sold his property cannot after-
wards treat him as a wrongdoer, and maintain trover against