BETTS v. MOUSER, 1 Ohio Ch. 744

By the Court. An agister of cattle has such an. interest in -the cattle he keeps as to enable him to maintain trover against any one taking them away without right, and recover their value, or, for the injury he has sustained. If he has sued by authority and has recovered the value, the recovery is conclusive of the subject. If the agister sue and recover the value, he elects to hold himself answerable to the owner. If the owner sanction the suit, he cannot afterwards question the right.

If we are right in this, the only question for us to decide on the record is, whether .a former trial and judgment upon the same .subject may be given in evidence under the general issue in trover. A recovery of damages in trespass or trover, changes the property of the chattel converted: (2 Sir. li. 1078; 4 Esp. C. 251; 3 Camp. R. 317; 1 Bing. R. 371". If, then, the right to sue, and the recovery of damages changes the property, the determination of the right of the defendant, may be equally conclusive, if with a person having the right, and if decided on the merits.

The defendant, under not guilty in trover, may give in evidence any thin'g which shows the plaintiff had no property, or a former recovery: (3 WUs. R. 308; Blk. R. 831: 1 Pick. R. 65.) The judgment merges the original cause of action, while it remains in force. The evidence tended to make out the defence and should have been admitted. Iiow far the judgment was conclusive is a different question; if the decision was not upon the question of right, that might be shown by rebutting evidence, as it would have been by replication, if it had been specially pleaded.

Judgment reversed. case was argued and submitted in Ross county, but the' opinion was pronounced in Pickaway.