¶1I concur. The action is trover against two defendants to recover the value of certain wheat of the plaintiff, alleged to have been converted by the defendants to their own use.
¶2The court below finds that at the commencement of the action “the defendant Baker was in the lawful possession of said wheat, as master of said ship, for the purpose of transportation to Cork aforesaid, and did not unlawfully convert the said property to his own use, and that said Baker is entitled to judgment in his favor in this action.” This was an adjudication in this action that at the commencement of the action the plaintiff was not entitled to the possession, and judgment was entered in favor of the defendant, Baker, on this ground. From this judgment the plaintiff has not appealed, and it, therefore, stands as finally adjudged that the plaintiff was not entitled to the possession at the commencement of the action.
¶3But the court finds certain facts from which it concluded, as a matter of law, that the other defendant, Meyer, had con*43verted the wheat, and entered a judgment against him for its value, and from this judgment Meyer appeals.
¶4In this class of action the rule is of universal application that the plaintiff cannot recover unless, at the commencement of the action, he was entitled to the immediate possession of the property: Bouvier’s Institutes, secs. 3519, 3520, 3524, and authorities there cited.
¶5In this action, it having been adjudged that the plaintiff was not entitled to the immediate possession, and this adjudication not having been appealed from, and remaining still in force, the plaintiff is concluded by it, and it results that the plaintiff was not entitled to recover, in this form of action, against the defendant, Meyer„