By the Court,
Paige, J.Chief Justice De Grey, in the Dutchess of Kingston’s case, (11 St. Trials, 261, S. C. 20 Howell’s St. Tr. 538,) laid down the following rule, viz. “ That the judgment of a court of concurrent jurisdiction directly upon the point is, as a plea, a bar, of as evidence, conclusive between the same parties upon the same matter directly in question in another suit.” The supreme court, in Jackson v. Wood, (3 Wend. 27,) repudiated that part of this rule which recognizes the conclusiveness of a former judgment when offered as evidence; and adopted the adverse principle, that a former judgment was in no case conclusive between the parties, unless it was brought forward by plea as an estoppel. But this decision of the supreme court was afterwards unanimously reversed by the court of errors, (8 Wend. 1,) and the rule of Chief Justice De Grey was affirmed by that court. In the court of errors Chancellor Walworth held that it was only necessary to plead a former recovery as an estoppel, where special pleading was required; and that it could be given in evidence in all cases where the party relying upon it as an estoppel has had no opportunity to plead the same specially, as a bar. The principles of the Dutchess of Kingston’s case were recognized as law in Gardner v. Buckbee, (3 CoWen, 120,) and in Burt v. Sternburgh, (4 Id. 559.) In Young v. Rummell, (2 Hill, 480,) Bronson, J. lays, down the rule that evidence of a former recovery-, when properly received under the general issue, “is just -as conclusive as though the matter had been specially pleaded by way of estoppel,” and “ that a former recovery in which the same matter was tried upon the merits, between the same parties, may be given in evidence without being specially pleaded, *174wherever the party, whether plaintiff or defendant, has had no opportunity to plead the recovery specially.” (Id. p. 481.)
In the present case, the plaintiff had no opportunity to plead the recovery against Wheaton specially; and the same was therefore admissible in evidence, if Wheaton can be regarded as the real defendant in the suit; or if Allerton was his privy in estate, or a privy to the former recovery. A verdict or judgment in a former action upon the same matter directly in question, is evidence for or against privies in blood, privies in estate, and privies in law, as well as for or against the parties to the suit. (1 Phil. Ev. 324.)
In Kinnersley v. Orpe, (2 Doug. 517,) the former recovery against a servant of Doctor Cotton, for the same cause of action; was held admissible as evidence of the plaintiff’s right to the fishery, although not conclusive, upon the ground that Doctor Cotton was the real defendant in both causes, both defendants having acted under him. This decision Spencer, Justice, in Case v. Reeve, (14 John. 82,) seemed to think reconcilable with the rules of evidence, on the ground that both suits were substantially against Doctor Cotton himself; inasmuch as the acts of trespass were committed by his express direction and for the' very purpose of trying the right to the fishery. In Street v. Bovington and others, (5 Esp. N. P. Cases, 56,) the record of the former trial in the suit against Bovington, was received as evidence against the two other defendants who were not parties to the former suit, upon the ground that they justified under Bovington. If the defendant Allerton sustains merely the character of a co-trespasser with Wheaton, the recovery against Wheaton is not competent evidence against him. (Sprague v. Waite, 19 Pick. 455.) But can Allerton be regarded merely as a co-trespasser with Wheaton ? He did not claim the cattle in his own right. He acted under the orders of Wheaton, who claimed title to the cattle. He took the cattle by Wheaton’s command, and as his agent or servant. He justified the taking under Wheaton, and under his title. Wheaton claimed title to the cattle under a purchase from the plaintiff. The case does not authorize the inference that Allerton knew he was a *175trespasser in taking the cattle. I think, therefore, we must regard the defendant as a privy of Wheaton; and as he justifies under Wheaton, the former recovery against Wheaton must be deemed admissible evidence against him, and conclusive evidence of the plaintiff’s title to the cattle, and of his right to the possession of the same. The circuit judge therefore decided correctly in receiving the record of the recovery against Whea-ton, as evidence against the defendant. I think the circuit judge also decided correctly in rejecting the proof offered by the defendant. The defendant offered to show a purchase of the cattle, by Wheaton, from the plaintiff, and a sale by Whea--ton to Wheeler, and a taking, by the defendant, by the orders of Wheeler. This was nothing more or less than a justification under the title of Wheaton. Under the state of facts offered to be shown, Wheeler and the defendant would be the privies, in estate, of Wheaton. And as to them, as such privies, the recovery against Wheaton was conclusive evidence of the plaintiff’s title to the cattle. No question was raised on the charge of the judge. The motion for a new trial must be denied.