for the plaintiff in this action of trover, "because trover and trespass are actions sometimes of a different nature; for, trover will sometimes lie where trespass vi et armis will not lie: as, if a man hath my goods by my delivery to keep for me, and I afterwards demand them, and he refuses to deliver them, I may have an action of trover, but not trespass vi et armis, because here was no tortious taking: and sometimes the case may be such that either the one or the other will lie; as, where there is a tortious taking away of goods, and detaining them, the party may have either trover or trespass, and in such case judgment in one action is a bar in the other. And the rule for this purpose is, that wheresoever the same evidence will maintain both the actions, there the recovery of judgment in one may be pleaded in bar of the other; but otherwise not: and so this judgment will not clash with Ferrer's Case, 6 Co. Rep. 7 a, which is good in law, for here it is to be presumed that the plaintiffs in the first action had mistaken their action, for that they had brought a trespass vi et armis, whereas they had no evidence to prove a wrongful taking, but only a demand and denial, and therefore the verdict passed against them in that action, and so were forced to begin in this new action of trover." And the learned reporter adds,"This judgment was given positively by Pemberton, Jones, and myself; Dolben, hæsitante." In Hitchin v. Campbell, as reported in 3 Wils. 240, 2 Sir W. Blac. 779, to assumpsit for money had and received by the defendant to the use of the plaintiff, the defendant pleaded in bar "that the plaintiff heretofore brought an action of trover against him and one A. B., to recover damages against them for divers *goods and *160] chattels of the plaintiff supposed to be converted by them to their own use; to which they pleaded the general issue, and a verdict was found for them (the defendants), and judgment was entered thereupon, which the present defendant now pleaded in bar to this action, and averred that the goods and chattels for which the action in trover was brought, are the very same identical goods for the produce thereof (by sale) the present action is brought by the plaintiff against the defendant for money had and received for the plaintiff's use." And, upon demurrer, "the whole court, without much debate, were clear of opinion that a judgment for the defendant in trover is no bar to an action for money had and received by the defendant for the use of the plaintiff." [JERVIS, C. J.-There, the recovery in the former action was by the defendants. Here, the recovery by Buckland in the former action of trover against Thomas Barber Johnson makes the goods the goods of Thomas Barber Johnson by relation to the time of the conversion. The goods, therefore, which the present defendant sold, were the goods of Thomas Barber Johnson.]

JERVIS, C. J.—I am of opinion that this rule should be discharged. I think the plea was properly amended; and I think it was substantially proved as amended. I also think that the objections to the

amendment which have been now urged by Mr. Hawkins, should have been urged at the time, when, if there were anything in them, they might have been removed by a further amendment. There can be no doubt that the plea as amended was proved in substance: and I think it is equally clear that my Brother Williams was quite right in allowing the amendment. The question which was substantially in issue between the parties, and which both went down to try, was, not whether the proceeds of the sale of the plaintiff's goods had been received by the defendant *and his son jointly, but whether there had been a [*161 substantial recovery by the plaintiff in the former action, so as to bar his right to recover in this. As, therefore, the amendment raised substantially the real point in controversy between the parties, I do not think it ought to have been allowed only upon the terms of the defendant's paying the costs of the day. The sole remaining question, then, is, whether the plea as amended affords an answer to the action. I think it does. The authorities show,-and indeed it is not denied,—that, if Thomas Barber Johnson, the son, had received the money as well as converted the goods, and Buckland had sued him in trover, and obtained a judgment against him, even though it had produced no fruits, that judgment would have been a bar to another action against him for money had and received. Upon the same principle, if two jointly convert goods, and one of them receives the proceeds, you cannot, after a recovery against one in trover, have an action against the other for the same conversion, or an action for money had and received to recover the value of the goods, for which a judgment has already passed in the former action. Mr. Finlason says, that, as the plaintiff recovered only 1007. in the action against Thomas Barber Johnson, and the present defendant received 150l. as the value of the goods, the plea should at all events only be considered as a bar to the extent of 1007.: and for this he relies on Hitchin v. Campbell, 3 Wils. 240, 2 Sir W. Blac. 779. That case, however, does not sustain the position for which it was cited. It was an action for money had and received by the defendant for the use of the plaintiff; to which the defendant pleaded in bar, that the plaintiff had brought an action of trover against him and one A. B. to recover damages against him for divers goods and chattels of the plaintiff supposed to be converted by them to their own use, to which they pleaded the general *issue, and a verdict was found for them [*162 (the defendants), and judgment was entered thereupon, which the present defendant now pleaded in bar to this action, and averred that the goods and chattels for which the action in trover was brought were the very same identical goods for the produce whereof (by sale) the present action was brought by the plaintiff against the defendant for money had and received for the plaintiff's use: and, upon demurrer, the court held that a judgment for the defendant in trover is no bar to an action for money had and received by the defendant for the use of

the plaintiff. As the verdict for the defendants in the action of trover might have gone upon the ground that the sale of the goods took place with the plaintiff's authority,-which, though it would negative the alleged conversion, would be no answer whatever to an action for money had and received, -that case is obviously no authority on the present occasion. The whole fallacy of the plaintiff's argument arises from his losing sight of the fact, that, by the judgment in the action of trover, the property in the goods was changed, by relation, from the time of the conversion; and that, consequently, the goods from that moment became the goods of Thomas Barber Johnson; and that, when the now defendant received the proceeds of the sale, he received his son's money, the property in the goods being then in him. Some of the authorities do, indeed, seem to lay it down that it is not the recovery only, but the recovery coupled with the payment of the damages, that changes the property. Thus, in Cooper v. Shepherd, 3 C. B. 272 (E. C. L. R. vol. 54), Tindal, C. J., delivering the judgment of the court, says: "The plaintiff in trover, where no special damage is alleged, is not entitled to damages beyond the value of the chattel he has lost; and, after he has once received the full value, he is not entitled to further compensation in respect of the same loss: and, according to the doctrine of the cases *which were cited in the *163] argument, by a former recovery in trover, and payment of the damages, the plaintiff's right of property is barred, and the property vests in the defendant in that action: see Adams v. Broughton, 2 Stra. 1078, and Jenkins, 4th Cent., Case 88, where it is laid down, A., in trespass against B. for taking a horse, recovers damages: by this recovery, and execution done thereon, the property in the horse is vested in B. Solutio pretii emptionis loco habetur.'" But, in the fuller report of Adams v. Broughton in Andrews, 18,-where an action of trover had been brought by Adams against one Mason, wherein he obtained judgment by default, and afterwards had final judgment, whereupon a writ of error was brought; and another action of trover was afterwards brought by Adams for the same goods for which the first action was brought against Broughton,-the court, upon a motion to hold the defendant in the second action to bail, distinctly lay it down that "the property of the goods is entirely altered by the judgment obtained against Mason, and the damages recovered in the first action are the price thereof; so that he hath now the same property therein as the original plaintiff had; and this against all the world." By "damages recovered," the court evidently did not mean "paid," for a writ of error was then pending in the first action. And this is explained by the principle laid down by my Brother Parke, in King v. Hoare, 13 M. & W. 504,t-If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original

cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, transit in rem *judicatam,'-the cause of action is changed [*164 into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two. Thus, it has been held, that if two commit a joint tort, the judgment against one is of itself, without execution, a sufficient bar to an action against the other for the same cause: Brown v. Wootton, Yelv. 67, Cro. Jac. 73, F. Moore, 762. And though, in the report in Yelverton, expressions are used which at first sight appear to make a distinction between actions for unliquidated damages and debts, yet, upon a comparison of all the reports, it seems clear that the true ground of the decision was not the circumstance of the damages being unliquidated. Chief Justice Popham,-Cro. Jac. 74,-states the true ground: he says, If one hath judgment to recover in trespass against one, and damages are certain,' (that is, converted into certainty by the judgment), although he be not satisfied, yet he shall not have a new action for this trespass. By the same reason, è contrà, if one hath cause of action against two, and obtain judgment against one, he shall not have remedy against the other: and the difference betwixt this case and the case of debt and obligation against two, is, because there every of them is chargeable, and liable to the entire debt; and, therefore, a recovery against one is no bar against the other until satisfaction.' And it is quite clear that the chief justice was referring to the case of a joint and several obligation, both from the argument of the counsel, as reported in Cro. Jac., and the statement of the case in Yelverton. We do not think that the case of a joint contract can, in this respect, be distinguished from a joint tort. There is but one

cause of action in each case. The party injured may sue all the [*165 joint tort-feasors or contractors, or he may sue one, subject to the right of pleading in abatement in the one case, and not in the other; but, for the purpose of this decision, they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of action. (a) The right of action is merged in the judgment. It is the judgment that disposes of the matter, and not the payment.

MAULE, J.-I also am of opinion that this rule should be discharged, and that the case was a very proper one for amendment at the trial. The amendment asked for and allowed did not alter the substance of

(a) And see the judgment of Bayley, B., in Lechmere v. Fletcher, 1 C. & M. 623.† VOL. XV.-17

the plea, or in any degree vary that which was the real question in controversy between the parties, viz., whether the plaintiff had recovered against one of two joint tort-feasors, so as to make that recovery a bar to a subsequent action against the other. That question was raised by the plea as it originally stood; and it was also raised by the plea as amended. I do not think it was at all a case for the imposition of terms upon the defendant. Every plea is to be taken subject to such amendments as the law as it now stands permits the judge to make.. Then the plea as amended seems to me to be a good plea; and, being proved, afforded a good defence to the action. It states, in substance, that the money sought to be recovered in this action was the proceeds of certain goods of the plaintiff which the now defendant and Thomas Barber Johnson had jointly converted, and that the plaintiff had sued Thomas Barber Johnson for that conversion, and recovered a verdict against him for 100l., the value of the goods so converted. That seems to me to afford a substantial answer to the action. In an action of *trover, the plaintiff may not always recover the full *166] value of the thing converted: and, if it had been shown here that the plaintiff had not recovered the full value of the goods in question in the former action, I will not say what the consequences might have been. But here we must take it that the plaintiff did recover the full value in the former action. Having his election to sue in trover for the value of the goods at the time of the sale, or for the proceeds of the sale as money had and received, the plaintiff elected the former remedy, and he has obtained a verdict and judgment. He has, therefore, got what the law considers equivalent to payment, viz., a judgment for the full value of the goods. It appears upon the plea and upon the evidence, that the sum actually received by the present defendant as the proceeds of the sale exceeded the amount for which the plaintiff recovered judgment in the former action. But, when the plaintiff made his election to sue in trover for the value at the time of the sale, he was bound by the estimate of the jury. The circumstance of the present defendant's having been a joint converter, or a stranger, makes, I think, no difference. If he were a stranger, the plaintiff, having once recovered in respect of the same goods, cannot recover again the same thing against somebody else. There is an end of the transaction. Having once recovered a judgment, his remedy was altogether gone: his claim was satisfied as against all the world. He was in fact in the position of a person whose goods had never been converted at all. For these reasons, I think the rule should be discharged.

CRESSWELL, J.—I am of the same opinion upon both points, and for the reasons already given. As to the suggestion thrown out, that the plaintiff ought to be allowed to recover the difference between the value of the goods as fixed by the verdict in the former action of trover, and