There is nothing appearing in the record, which shows that the defendant below ever had the oxen in his possession. And although the matter contained in the plea of estoppel might be good under the general issue, it is not an answer as an estoppel.

1Cushman, considering the objection unanswerable, declined arguing the case for the defendant in error.

At a subsequent day in the term,

Prentiss, J. pronounced the following opinion of the Court.

It is quite inconsistent to suppose that a defendant can in any case be estopped to plead the general issue. He has a right to rely upon this plea, which generally puts the plaintiff upon proof of the whole of the facts alleged in his declaration. An estoppel can be replied only where the defendant alleges or pleads some particular fact or matter, as to which he is concluded, either by his own deed, by a confession of record, or by a verdict finding the same fact or matter in another action between the same parties, or between those to whom the parties stand in the relation of privies. Where the general issue is pleaded, and any particular fact is involved in the issue, which has been found by a verdict in another action, the verdict may be given in evidence to the jury, but cannot be replied by way of estoppel. The defendant in the action below pleaded the general issue, and he had a right thus to put the plaintiff upon proof of property in the oxen in himself, and a conversion by the defendant, and proof of both of these facts was essential to entitle the plaintiff to recover. Admitting that the record of the recovery in the action against Zacheus Cook, which was replied as an estoppel, would be at all admissible as evidence of the plaintiff’s title to the oxen, it would not show that the defendant acquired the possession of them tortiously, that he had refused to deliver them on demand, or had in any way been guilty of a conversion. Besides, the defendant, under the general issue, if it had been joined, would have been at liberty to prove, and might perhaps have shown, a subsequent sale or letting of the oxen by the plaintiff to him, or that the property was in a third person. The recovery in the first suit did not establish the plaintiff’s right to recover in the action below; and if the plaintiff, whG was a stranger to that recovery, could avail himself of it at all, it could only be by giving it in evi* *345dence to the jury. The judgment of the County court is clearly erroneous, and must be reversed.

Judgment reversed.

Cushman, for the plaintiff below, now moved the Court for leave to amend the pleadings in the action, by waiving the es-toppel and joining the general issue.

said he saw nothing in the nature of the case which estopped the party from taking that course.

Though I at first thought differently, I believe that this Court may now proceed to render a final judgment, and that they ought to do it, unless some special motion is interposed.

Prentiss, J. I had taken the same view of the case as Judge Hutchinson, but I consider this case like that of a general demurrer to the declarationjudgment is in chief. But the case is open to any motion to alter the pleadings.

Cushman therefore renewed his motion, which was granted, under a rule that he pay the costs of this writ of error.