Marsh v. Pier

4 Rawle 273 | Pa. | 1833

The opinion of the court was delivered by

Kennedy, J.

This was an action of replevin, and was commenced on the 27th of November, 1828, in the District Court for the City and County of Philadelphia, 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, 1832, and a verdict given in favour of the plaintiff for 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 II. 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 brigs’ being leaky and unfit to make the passage good to New York, changed his course and went to New Orleans. There he had a survey made of the vessel, which w'as condemned. Ife 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 Sp Co., at seventeen dollars and fifty cents per ton, who transmitted it by the barque Hercules to Philadelphia, consigned to Messrs. C. Price Sp Morgan, of that place. It arrived there about the 28th of October, 1828, and about five weeks 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 Sp 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 proceeds thereof by them. On the first day of November, then next following, Sylvester Pier, having come to Philadelphia, found the logwood there on board of the barque Hercules, and immediately caused a written notice to be given to William Longcope, the captain of the Hercules, and likewise to Messrs. Price Sp 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, commencing the suit, “ not found.” The cause of action as set forth in this exemplification is contained in nine counts, the first of which, after stating that William Nott and John Parker, as the agents of the said Sylvester Pier, took possession of the vessel, called the Sally Barker, and cargo, consisting 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 consideration of a reasonable reward to be paid to them, they undertook 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 afterwards required; yet the said Notl 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 coutrary, 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 ivhollij lost to the said Sylvester 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 hare 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 a promise to pay them a reasonable reward, would take care of the logwood 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 merchandizes belohging to him, of the value of five thousand dollars, delivered to them at their request by the plaintiff, 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 dollars, put into the hands of the defendants by the plaintiff

The eighth count, is upon a promise to pay five thousand dollars 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, the defendant below excepted and has assigned it here, as the ground of his third error.

The defendant below, then offered to read in evidence to the jury, the same exemplification in connexion 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. Rill of particulars^ 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 3rd. Value of the brig Sally Barker, John H. Marshall master, her sails, rigging, tackle and furniture, arrived at New Orleans from Tabasco, and put under the defendants’ care and control at New Orleans, at or about this date, to be sold and disposed of by the defendants, and to be accounted for by them to the plaintiff, - #1500 00

“ One hundred tons of logwood, which arrived in the said vessel and composed her cargo, also put into the hands of the defendants, or under their care and control, 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, #2800 00

“ October 10th. Cash received by the defendants for 97 tons 13 wt. 3qrs. 14 lbs. logwood belonging to the plaintiff, and sold by the defendants to S. P,. Morgan Sf Co. at New Orleans, at #17 50 per ton, #1709 65

“ October- 20th. Balance of account, stated and rendered by the defendants to the plaintiff, dated New Orleans, 20th October, 1828, being account of sales, and nett proceeds of logwood, received by the brig Sally Barker from Tabasco, #1589 42

“ October 22nd. Cash received’ by the defendants from sales of the hull, masts, sails and rigging of the brig Sally Barker, belonging to the plaintiff, #44188

“ Money had and received by-the defendants, at New Orleans, to and for the use of the plaintiff, • #2020 25

“ Balance of an account, stated by the defendants, to and with the plaintiff dated New Orleans, 22nd October, 1828, #2020 25

“ Interest oh the above sums respectively,

“ W T. M‘Coun,

“ Attorney to the plaintiff.”

The reading of the exemplification in connexion 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 exception taken thereto by the defendant below, which is the ground of his fourth error assigned.

As the first, third, fourth and eighth errors 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 probable 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 deliver 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 generally it throws upon him the onus probandi, yet the plea of property, as I apprehend, does not produce this effect in the action of replevin. The plaintiff, I think, must, notwithstanding, ñrst prove that he has a right to maintain his writ of replevin, by showing that he has either an absolute or special property in himself. Co. Lift. 145. Bul. N. P. 52. In this respect, the action of replevin is different from trespass, which may be supported against any one who has no right, by him who has the possession. Waterman v. Robinson, 5 Mass. R. 303. Hence property in a stranger is pleadible in replevin either in bar or in abatement. Salk. 5. 94. S. C. Ld. Raym. 984. Cro. Jae. 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 plaintiffhath not a right to the deliverance. 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 withholds it from the plaintiff unlawfully, as where he got it tortiously ; and consequently the plea of property, although it be the only plea put in by the defendant, cannot be considered as an admission by him that the plaintiff ever bad possession of the goods so as to give him even the col-our 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 notwithstanding 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, notwithstanding that the defendant relies solely on the plea of property, 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 below refusing to admit in evidence the exemplification of the record 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 below, 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 belowc

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 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 Sp Co., who shipped it on board of the barque Plercules consigned to C. Price <§■ Morgan at Philadelphia, who sold it again to the plaintiff in error.

Now, as the sale of the logwood by Nott and Parker at New Orleans, 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 Neto 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 conviction 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 entitled 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 ground upon which that action could have been determined, 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 determination 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, confession, verdict, &c. he is barred as to that, or the like action of the like nature for the same thing forever,” for expedit reipublicce ut sit finis litium; which is also supported by another maxim, nemo debet bis vexari, si constet curice quod 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 Barwell 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 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 defendant in trespass de bonis asportatis, was determined to be a bar to the plaintiff’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 agaiust the defendant, who has sold his goods without authority, and obtains a judgment covering the value of the goods, the right of property in them, I take it, from the weight of the English authoritieson 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 Fenner, 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 v. 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 plaintiff 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, 8 Cowen, 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 unsatisfied. 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 after-wards be permitted to gainsay it. Omnis ratihabitio retrotrahitur et mandato seu licentice aiquiparatur. Lamine v. Dorrell, 2 Ld. Raym. 1216. Bennitt v. Francis, 4 Esp. 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 afterwards treat him as a wrong doer, and maintain trover against him. And should the plaintiff fail, on trial of the action of assumpsit, and have a verdict and judgment given against him, still he would be precluded thereby from maintaining another action for the same goods, involving the same evidence, and in effect, the same cause of action, for the question, or subject-matter of dispute, having passed once in remjudicatam, he shall not again vex the defendant or those claiming under him with a second action. Young v. Black, 7 Cran. 567.

Neither is it material in such cases, that both actions were commenced on the same day, or at different dates, and were both pending afterwards, at the same time, and the action last brought, tried first, and judgment rendered in it; still the plaintiff will be bound by it, and be precluded from further maintaining the action first entered, and so vice versa. This was the case in Garvin v. Dawson, 13 Serg. & Rawle, 246, where the second action between the parties, commenced about one month after the first was tried, and a judgment rendered in it in favour of the defendant, which was afterwards held to be a bar to the plaintiff’s further maintenance of his first action. This is according to the rule, nemo bis vexari debet, which allows to every one the opportunity of having his complaint fairly investigated, and fully heard before the judicial tribunals of the state, but being once decided by the proper court, after such investigation and hearing, the peace and quiet of the community require that there should be an end of the dispute. If we disregard this rule, we have no other, and every controversy must become interminable.

From the views which I have taken of this part of the case, it appears to me, that the exemplification of the record of the Superior Court of the city of Mew York, was not only pertinent to the issue joined, and therefore admissible, but. would have been conclusive evidence against the plaintiff’s right of property to the logwood, had it been received, unless he had shown that the logwood for which he made a claim in that action, was not the same claimed in this, or that he had on the trial of that, withdrawn that part of his claim which consisted of the logwood. The defendant below in this action, pleaded property in the logwood, and the judgment of the Superior Court of the City of Mew York, showing that the plaintiff had been divested of his right to it, by a sale made thereof, under which the defendant below in this action, claims to derive his right, established greatly the most important link in the chain of his title. And although the judgment of the Superior Court of the city of New York, was rendered during thé pendency of this action, still I think is was not necessary to plead it, in order to make it admissible evidence, because it was, in effect, the decision of a competent court of concurrent jurisdiction, given in affirmance of the sale of the logwood, mentioned in the record of the judgment made by the defendants therein named, before the commencement of this action, under which the defendant here claims a right to the logwood. Neither do I conceive that it was necessary to plead it, in order to make it conclusively binding upon the jury against the plaintiff below; for if it was properly admissible under the plea of property, of which I entertain no doubt, as it went directly to establish the validity of the sale of the logwood, under which the defendant below claimed it, it being the judgment of a competent' court, must be considered the conclusion or sentence of the law on the facts of the case, and therefore not to be set aside, reversed or disregarded, by either court or jury in this action. This doctrine, as I conceive, is not inconsistent with the rule laid down by a majority of this court, in Kilheffer v. Herr, 17 Serg. & Rawle, 322, but comes within the qualification there mentioned, that wherever the party is not bound to plead specially to enable him to give the record of a former recovery in evidence, it will, when given in evidence, although not pleaded, be conclusive and binding upon the plaintiff) the court, and the jury. 1 Phil. Ed. 223-4. (New York, 1816.) Where a subject or question in controversy has been once settled by the judgment of a competent tribunal, it never ought to be permitted to be made the ground of a second suit between the same parties, or those claiming under them, as long as the judgment in the first suit remains unreversed. The peace of the community is a great desideratum, and nothing ought to be tolerated, that would disturb it unnecessarily. Before the'rendition ofa judgment, the court is presumed to be made acquainted by one or other, or by both .of the parties, with every thing that is necessary to be known, in order to procure a correct decision upon the case; so that the judgment of the court not being pronounced, until after it has been so informed, must be taken and considered as corresponding and answering fully to the claims of justice. It is therefore, altogether inadmissible to say, that a renewal of the contest shall or ought to be permitted, because the first decision was not just or right.

The propriety of those decisions which have admitted a judgment in a former suit, to be given in evidence to the jury on the trial of a second suit for the same cause, between the same parties or those claiming under them, but at the same time have held that the jury were not absolutely bound by such judgment, because it was not pleaded, may well be questioned. The maxim, nemo debet bis vexari, si constet curice quod sit pro una et eadam causa, being considered, as doubtless it was, established for the protection and benefit of the party, that he -may therefore wave it; and unquestionably, so far as he is individually concerned, there can be no rational objection to his doing so.. But then it ought to be recollected, that the community has also an equal interest and concern in the matter, on account of its peace and quiet, which ought not to be disturbed at the will and pleasure of every individual, in order to gratify vindictive and litigious feelings. Hence, it would seem to follow, that wherever on the trial of a cause, from the state of the pleadings in it, the record of a judgment rendered by a competent tribunal upon the merits in a former action for the same cause, between the same parties or those claiming under them, is properly given in evidence to the jury, that it ought to be considered conclusively binding on both court and jury, and to preclude all further inquiry in the cause; otherwise the rule or maxim, expedit reipublicce ut sit finis litium, which is as old as the law itself, and a part of it, will be exploded and entirely disregarded. But if it be part of our law, as seems to be admitted by all that it is, it appears to me that the court and jury are clearly bound by it, and not at liberty to find against such former judgment. A contrary doctrine, as it seems tome, subjects the public peace and quiet, to the will or neglect of individuals, and prefers the gratification of a litigious disposition on the part of suitors, to the preservation of the public tranquillity and happiness. The result, among other things, would be, that the tribunals of the state, would be bound to give their time and attention to the trial of new actions, for the same causes, tried once or oftener, in former actions between the same parties or privies, without any limitation, other than the will of the parties litigant, to the great delay and injury, if not exclusion occasionally of other causes, which never have passed in rem judicatam. The effect of a judgment of a court having jurisdiction over the subject-matter of controversy between the parties, even as an estoppel, is very different from an estoppel arising from the act of the party himself, in making a deed of indenture, &c. which may, or may not be enforced at the election of the other party; because, whatever the parties have done by compact, they may undo by the same means. But a judgment of a proper court, being the sentence or conclusion of the law, upon the facts contained within the record, puts an end to all further litigation on account of the same matter, and becomes the law of the case, which cannot be changed or altered, even by the consent of the parties, and is not only binding upon them, but upon the courts and juries ever afterwards, as long as it shall remain in force and unreversed.

The fourth error is, that the court below refused to admit in evidence the exemplification, in connexion with the bill of particulars already set out verbatim. That the exemplification was admissible, has been shown ; but if it had not been admissible of itself, it is not easy to conceive how this writing, called “ a bill of particulars,” would have made it so. Indeed, without any proof having been given, or even offered, to show that this bill of particulars was made, and came from the plaintiff, Sylvester Pier, or from his attorney or his counsel, to William Nott, the defendant in the action, set forth in the exemplification, or to his attorney or counsel, before the trial of that action, in short, to show that it was genuine, and what it purported to be on its face, I am at a loss to conjecture upon what ground the counsel offering it in evidence, could have imagined that it was admissible, either conjunctively or separately. If such evidence, however, as I have mentioned, of its having come from the plantiff, his attorney or counsel, to the defendant in the action set forth in the exemplification, his attorney or counsel, before the trial of it, had been first given, or the court had refused to receive it when offered, it would have been error in the court below, not to have received such preliminary testimony, and after that, not to have received the bill of particulars itself in evidence, after the exemplification had been first read in evidence, or not to have admitted it in connexion with the exemplification. But without such preliminary proof being made, it was clearly not admissible; after it, it was, because it would have shown to demonstration, that the cause of action, so far as it consisted of a claim, for and on account of the logwood in the suit tried in the Superior Court of the city of New York, was identically the same with the cause of action in this case. The court below were right in rejecting the bill of particulars, as no proof was offered to show that it was genuine, and what it purported to be.

The eighth and last, error, is, that the verdict is general for the plaintiff, giving the amount of damages, which the jury conceived the plaintiff was entitled to recover, without finding the value of the goods eo nomine, and damages separately besides for their detention, so that the judgment might have been rendered accordingly and for a return irrepleviable. Where the defendant in replevin claims property in the goods for which the writ is sued out, and gives bail to the sheriff, as was done in this case, the sheriff cannot replevy them. He is bound to take the bail if good, and to leave the goods in the possession of the defendant. The plaintiff must therefore count in the detinet, as the goods are not delivered to him, and if he succeeds on the trial in establishing his right of property to the goods, he “ shall have judgment to recover all in damages, as well the value of the goods as damages for the taking of them and his costs.” F. N. B. 69, L. and the cases referred to in note (c) 9th ed. Dublin, 1793. No judgment for a return of the goods is given in such case, but for damages equal in amount to the value of them, as a compensation for their loss, and the property in the goods is thereby transferred, as I have already said in another part of this case, to the defendant. The judgment rendered in this case is in the usual form. Gilb. on Replev. 125-6. Easton v. Worthington, 5 Serg. & Rawle, 131. Hosack v. Weaver, 1 Yeates, 478. Hardy v. Metzgar, 2 Yeates, 347. In those two last cases, the judgment in each was rendered in the same form in favour of the plaintiff, upon the plea of property, as in this. There is therefore no error in the form of entering the judgment here, but it must be reversed for the third error assigned.

.Judgment reversed and a venire facias de novo awarded.