| N.Y. Sup. Ct. | May 15, 1847
The common pleas erred in holding that the judgment in the action of replevin was a bar to the action of trover. The plaintiff in the latter case was not shown to have had any concern with the action of replevin; he was not a party to it, nor in privity with any such party. Upon no principle, therefore, could he be concluded by that judgment.
None of the authorities referred to by the counsel for the defendant in error, sustain the decision made by the common pleas. Kinnersley v. Orpe, (2 Doug. 499,) rests on the principle that the real defendant, in the case on trial and in the former action, was one and the same person. It was so understood by Chief Justice Spencer, in Case v. Reeve, (14 John. 82,) and tin no other ground is it reconcileable with well established rules of evidence. (Cowen & Hill’s Notes, 812.) Besides, the common pleas held the former judgment to be not merely evidence, but that it was conclusive as a bar. In Kinnersley v. Orpe, the contrary was adjudged, the court holding that although the evidence was admissible it was not conclusive.
It might be added that the bill of exceptions does not show that the mare, for which the action of trover was brought, was one of the two in question in the action of replevin. It may have been conceded on the trial that such was the fact, but the bill of exceptions would not authorize any such conclusion. The notices, put in by the defendants in replevin, under their pleas, proved nothing against the plaintiff in the action of trover; and, as far as this bill of exceptions discloses, he was an entire stranger to the action of replevin, and to the act for which it was prosecuted. It does not even appear that he ever heard of either until the record of judgment was brought up against him on the trial.
Judgment reversed.