
    CONSTITUTIONAL COURT, COLUMBIA,
    MAY, 1810.
    Whitmore’s Executors v. Casey’s Administrators.
    A verdict was giyen for the defendant in an action of trover. After-wards another action of trover was brought by other plaintiffs for the same conversion, to which the defendant pleaded the verdict irt the former action in bar; and upon issue thereon, the defendant had a verdict. After this, the plaintiffs in the second action sued another person, to recover the amount of the damages sustained by reason of the unsuccessful termination of the second action, on the ground, that the slaves, for the conversion of which the action was brought, were purchased from the defendant in the last mentioned case, and that he had notice, and was duly vouched to maintain the second action ; but it .appeared that he was not vouched in the first action; and as the verdict in the first action was held to be a bar to the second, it was adjudged that the defendant in the third case was not liable; since the verdict in the first case, of which he had not due notice, was interposed as’ a bar to the plaintiff’s right to recover in the second case, of which he had notice ; and he ought not to be affected by a verdict given in a case wherein he was not a party, or a privy.
    Motion to set aside a nonsuit, from Newberry district. Assumpsit, brought to recover a sum of money which was paid to the defendants intestate, General Levi Casey, by the plaintiff’s testator, Joshua Whitmore, for a certain negro slave named Caesar, sold by Levi. Casey to Joshua Whitmore, which slave was claimed by Joshua Jones, and Charles Jones, who proved a good title to the said slave, atid obtained a verdict in their favor, in an action brought against thprn in Charleston district, by George Whitmore and his wife, for the trover and conversion of the said slave! The negro in question was said to be plundered from the Jones’ during the revolutionary war, and afterwards came fairly into the possession of General Casey, who sold him to Joshua Whitntore. After the sale to Whitmore, the slave got, by some means, into the possession of his original ovvnev, the Jones’, against whom an action of trover was brought by George Whitmore and his wife, who claimed, if was said, as representatives of Joshua Whitmore, or as legatees; but it did not appejir, clearly, in what right the action was founded. In this action there was a verdict for the defendants. It appeared that Casey was not vouched to defend this action, and had no nolico of its pendency, so as to have it in his power to support the same by any proofs in his possession, or reach. After the termination of this suit in Charleston district, another action of trover was brought in the district of Newberry, against the said Charles and Joshua Jones, by the said George Whitmore and others, the present plaintiffs, as executors of the said Joshua Whitmore, for the conversion of the same slave in the lifetime of Joshua Whitmore. Casey was duly vouched to support this action. Bat the defendants pleaded to it in bar, the former action brought in Charleston, and the verdict in favor of the de. iendants, averring the identity of the cause of action, and of the parlies, as usual in such pleas. The plaintiffs did not demur to the plea, but joined issue the!eon, and a verdict was1 found for the defendants. The present action of assumpsit, to recover back the money paid to Casey for the negro, proven not to be his property when sold as such, was resisted on the ground, that Casey was not properly vouched to maintain the first action brought in Charleston district, and had no notice thereof, so as to furnish evidence in time to insure a verdict for the plaintiffs ; and that in consequence of a verdict’s being obtained in that action for-the defendants, the second action in Newberry district was defeated. That although Casey was duly vouched to support the action of trover brought in Newberry dis. trict, yet he was precluded from the benefit and advantage of any evidence he might otherwise have had .it in his .power to produce, and which he would have been competent to avail himself of, by reason of the former action in Charleston, and the verdict therein obtained by the defendants, in which action ho was not vouched. That Casey could not be bound by a verdict in an action to which he was neither party, nor priv)*, and in which he had no opportunity cross examination. That this verdict being pleaded in bar to the action in which he was vouched, precluded him from the advantage of any evidence he might have been possessed of, or could obtain ; for the only question in issue in the second, was, as to the identity of the causes of action, and of the parties, and not as to the right of property.
    Waties, J.. who presided on the trial, being of opinion with the defendants, on the ground of defence insisted on for them, the plain, tiff’s suffered a nonsuit, and had leave to submit the present motion to this court.
    The motion was argued the 2d May, 1810, by Farrow, fur the plaintiffs, and Stake, for the defendants.
    Fakrow contended, that the verdict in the first action could not properly be pleaded in bar to the sepond, as these actions were not between the same parlies, and in the same right. Also, that the record of the proceedings in the actions of trover, ought to have been pleaded in bar to the present action, and .ought not to have been given in evidence on the general issue of non-assumpsit. Cited Peake’s Evid. 38. Casey ought to have appealed.
    Stark, contra, said that it must be presumed to have been proven on the trial of the second action, that the first and speond actions were between the same parties, and in the same right, for that was the question tried. In the first action, the plaintiff might have sued as executor, without naming himself executor, as he had a right to, if the conversion was after his testator’s death. Cited Cro. Eliz. 668.-
   5th May, 1810.

Brevard, J.,

delivered the opinion of the whole court. Stated the case, and proceeded : To the plea in bar of a verdict for the defendants in a former action for the same cause,, the plaintiffs did not demur, as they might have done, if the plea was improper, but joined issue on the matter of fact tendered by the plea. From this appearing on record, it is to be inferred, that the questions of fact upon which this issue turned were fairly discussed, tried and determined. The .jury found for the defendants, and the right of properly was established in them. If General Ca.-sey had been duly vouched in the first action brought in Charleston,, he possibly might have brought forward evidence to establish the right of property in Joshua Whitmore, or his representatives. If he had not done so, the verdict in that case would he good evidence-against him; otherwise, it cannot be adduced, either directly, or' indirectly, to operate against him, or affect hie estate. It may be that the plea in bar was improper; and it may be too, that the ver-diet in the second action was erroneous; but this court is bound to presurntfithat both were right. If they were not right, it cannot be imputed to Casey that they were not so. If they were both correct, then Casey cannot, on legal principles, be answerable in this action; because the right of property was established by the verdict in favor of the defendants, the Jones’s, in.the first action, of which Casey had no notice, and which cannot be admitted to bind or affect him ; and because the verdict in the first action was the ground upon which the second action was determined in favor of the defendants, in which latter action, Casey had no opportunity of adducing evidence to prove a title superior to that, under which the defendants in the first action had maintained their possession, being concluded by the plea in bar of a verdict in a former action, which he had no opportunity to controver

But it has been urged that the estate of Casey is liable, as he did not appeal from the decision of the second action of trover, which was clearly erroneous. We are of opinion it was not his duty to appeal, even if the decision was wrong, as it was not his fault that such a de-cisión took place.' The decision of the issue to be tried in the second action could not possibly affect Casey, although he was regularly vouched ; because it turned on the allegation and denial offsets relative to a former verdict, which did not concern him, and did not relate direedy to the right of property in the negro he had sold. From any thing, then, which appears to us, although the fact may be otherwise, Casey may have had a good legal title to the slave at the time he sold him to Joshua Whitmore; and the Jones’s may have had the best legal title to the same slave at the time when the actions against them were tried; or a better title than that under which the plaintiffs claimed.

Motion rejected,  