
    The Bank of Beloit, Plaintiff and Respondent v. George W. Beale and Seth Adams, 3d, Defendants and Appellants.
    1. In an action commenced in November, 1858, by plaintiff against defendants to recoveivproceeds of wool consigned in the early part of 1858, by the former to the latter, for sale on the plaintiff’s account, the defendants allege in their answer that the wool was the property of one A..; that prior to June 9, 1858, A. employed B. as his agent to purchase 20,000 lbs. of wool in Wisconsin and forward it to Albany, agreeing to either pay B. half of the profits or one per cent, for commission, as A. might elect; that between June 9 and July 14, A. furnished B. $6,000 and 105 sacks worth $52.50; that B. bought 7,041 lbs. at $2,112.30, and sent it to A. with 34 sacks worth $17; and with residue of the money he bought wool in his own name, and assigned it (the wool in question), with the other sacks, to the plaintiffs; that A. had notified the defendants of the facts, and required the proceeds of the wool to be paid to him; and it appeared that in July, 1858, A-brought suit in the Supreme Court against B., and in his complaint alleged the same facts; and that B. refused’to return the residue of the sacks or deliver the residue of the wool bought, or account for the moneys advanced to him, and prayed judgment for the $6,000 advanced, less the $2,112.30, and for the value of the sacks not returned, and recovered a judgment therefor February 14, 1860; and issued a ca. sa. thereon, on which B. was arrested and imprisoned, and that such imprisonment continued up to the time of the trial of the present action, June 14,1860; it was held, that the action by A. against B. and the recovery of judgment therein, estopped A. from claiming property in the wool bought with the moneys for which such judgment was recovered.
    2. That the bringing of the action by A., with knowledge of the facts, to recover the residue of the $6,000, and recovering judgment therefor, was an election by A. between remedies, by virtue of which A. repudiated the use which B. made of the residue of the moneys as unauthorized, and waived all claim of property in the wool bought, and that such facts were a bar to the defense alleged in the answer of the present defendants.
    3. Held, (by Robertson, J.) that the suit of A. against B. was not an election of remedies affecting his right to pursue the wool until that suit had gone to judgment; and that as judgment therein was not recovered until after issue joined in this action, the defense herein was valid, when pleaded, and it was error to exclude proof of it at the trial.
    •4. Held, (by Boswobth, Oh. J.) that as no such question was made by the defendants at the trial, or'raised on the argument of the appeal, and as they did not object at the trial to proof being made of the fact of such recovery by A. against B., but only to the character of the evidence offered .to establish it, no such question was presented by the appeal; and that the only question was, whether the decision at the trial, as to the effect of such suit and recovery, was correct.
    5. Hald, also, that such suit and recovery by A. against B., and the taking of B.’s body in execution on the judgment, was a satisfaction of all claims of A. pending such imprisonment.
    (Before Boswobth, Ch. J., and Hoitmah and Kobebtsoh, J. J.)
    Heard December 13, 1860,
    decided February 23, 1861.
    Appeal by the plaintiff from a judgment, and from an order, denying a motion made by the plaintiff for a new trial. This action was brought in November, 1858, on the allegations, that the plaintiff, in the early part of 1858, consigned to the defendants a specific quantity of wool, to be sold for and on account of the plaintiff for cash; that the defendants received and sold the wool; but paid only $2,000 of the proceeds to the plaintiff, and refuse to pay the balance; the complaint prays judgment for the residue of the proceeds, which; including interest, the jury found to be $5,553.5*7.
    The defence relied on is, that B. A. Sweet owned the wool; that it had been purchased for him in Wisconsin by one M. W. Sherwood, and with Sweet’s money, on an agreement with Sherwood to forward it to Sweet at Albany; that instead of doing so, Sherwood transferred it to the plaintiff as security for antecedent advances made with notice of the rights of Sweet; that Sweet notified the defendants that the wool was his, and demanded that the proceeds of it be paid to him; and that they had in part paid to him such proceeds, except the $2,000, which they had paid to the plaintiff.
    The defendants, to show that the wool was Sweet’s, and that the plaintiffs took it under circumstances giving them no right to it, as against him, called as a witness the said M. W. Sherwood.
    On his being sworn, it was proved that he was, then, in the custody of the sheriff of Saratoga county, on an execution against his body, issued on a judgment recovered against him by said Sweet, in the Supreme Court of this State, on the 14th day of February, 1860, for $4,334.43 damages, besides costs. That said Sherwood was so produced as a witness under a habeas corpus ad testificandum.
    
    A duly certified copy of the judgment record, in the suit of Sweet v. Sherwood, was put in evidence. “The defendants’ counsel objected to the admission of the record in evidence, on the ground that it was not duly authenticated, and that the judgment should be proved by the original roll on file, or by an exemplified copy. The objection was overruled, and the paper admitted; to which decision the defendants’ counsel excepted.”
    The summons in that action states that in case of a default to answer, the plaintiff will take judgment against you (Sherwood) for $3,923.20, with interest from the 14th day of July, 1858, besides costs.
    The complaint (which was verified on the 7th day of September, 1858), states that prior to the 9th of June, 1858, Sweet “employed Sherwood” as his agent to purchase 20,000 pounds of wool for “Sweet in the State of Wisconsin,” and forward the same to “Sweet at Albany;” Sweet agreeing to pay to Sherwood either one-half of the profits made on the sale of the said wool, or one cent per pound commission for “ Sherwood’s services,” as he, the said “ Sweet, might elect.”
    That for that purpose, Sweet, between the 9th of June and the 14th of July, 1858, furnished and advanced to Sherwood $6,000, and also 105 wool sacks, of the value of $52.50. That with a portion of said moneys, Sherwood purchased and forwarded to the -said Sweet, thirty-four bales of wool, containing 7,041 pounds, purchased for, as the “said Sweet” is informed and believes, and amounting in value tó the sum of $2,112.30." That he also returned 34 of the wool sacks, of the value of $17.
    That with the remainder of the moneys, so furnished by “Sweet” to Sherwood, Sherwood purchased wool in his own name, and sold and assigned the same, together with the remainder of said wool sacks, to other parties; that he bps refused and still refuses to deliver the last mentioned wool to Sweet, or to furnish and deliver the wool purchased with the moneys advanced by Sweet, and also refused to refund or return the moneys so advanced and furnished “by said Sweet,” after deducting therefrom the amount thereof expended in the purchase of the wool delivered by Sherwood to Sweet, or to render any account thereof to Sweet.
    It alleges a demand by Sweet upon Sherwood, of the moneys not expended in the purchase of the wool delivered by the said “Sherwood to Sweet,” and an account thereof; and that Sweet “has also demanded the wool purchased therewith, but has been unable to obtain the said moneys or an account thereof, or the wool purchased therewith;” and prays judgment “for the sum of $3,923.20, with inte-' rest from the 14th of July, "1858, with costs of this action. The defendant put in an answer; verified November, 1858.
    The action was referred to, and tried before Hon. George Gould, as referee. His report, dated February 9, 1860, finds upon the pleadings and evidence, that the facts, substantially as stated in the complaint, are true; and states, in conclusion, that “ there can be no doubt that the plaintiff is entitled to recover the money advanced, less the proceeds of the wool received, with interest from the time of last advance, July 11, 1858.
    This amount is. ........................... $3,923 20
    With interest to December 28,1859 (one year,
    five months, fourteen days),______________ 411 23
    Making, in all,.................... $4,334 43
    “ For which sum the plaintiff should have judgment.”
    GEO. GOULD, Sole Referee.
    
    
      The defendants in this suit, in order to show that the wool in question was the property of Sweet, and that they were justifiable in paying the proceeds arising from the sale of it to him as such owner, after he had given notice of his title, and demanded such proceeds, offered to prove the facts stated in the complaint in the suit of Sweet v. Sherwood; being the allegations of fact contained in the second and third defences of the answer herein.
    Boswo'rth, Oh. J., before whom the action was tried, “ decided that the facts thus proved constituted a bar to the defence set up in the answer, and precluded the defendants from proving such defence; and that no evidence could be offered under it. To which decision the counsel for the defendants duly excepted.”
    The plaintiff had a verdict for $5,553.51. The defendants moved, on the judge’s minutes, for a new trial. The motion was denied, for reasons stated in the opinion following, viz.:
    Bosworth, Ch. J. —It will be seen, on examining the complaint in the suit of Sweet v. Sherwood, that Sweet’s whole claim is —
    (1) For cash advances,___________________ $6,000 00
    (2) For (105) sacks furnished,.............. 52 50
    Total,....................^...... $6,052 50
    He credits Sherwood for wool delivered, ______________________ $2,112 30
    For 34 sacks returned, _ _ „ _ ....... IT 00
    - 2,129 30
    The complaint prays judgment for......... $3,923 20
    with interest from July 14, 1858.
    The summons states that, in case of a failure to answer, judgment will be taken for that sum and costs. A summons in that form is proper only “ in an action arising on contract for the recovery of money only.” (Code, § 129, sub. 1.)
    
      The complaint sets forth the contract between Sweet and Sherwood, and alleges, as a breach of it, the refusal of Sherwood to deliver the wool purchased, as well as his refusal to refund the money or account for it. By the suit which he brought he elected to proceed on the contract, and claim a return of the money advanced, with interest thereon. He cannot, on the same facts, have a judgment against Sherwood for the amount of money furnished, and interest, and also for the value of the property bought with such money.
    By bringing a suit upon the contract, and claiming and recovering, as part of the damages arising from a breach of it, 'the moneys advanced with interest, he repudiates the use which Sherwood made of the money as one which was unauthorized, and absolutely waives all claim to property in the wool bought with it. After such a recovery, he could not maintain trover against Sherwood for converting the wool.
    Such a transaction is in principle like that between vendor and vendee, where the latter by fraud induces the former to sell and deliver goods on credit. In such a case, if the vendor, with knowledge of the fraud, sue the vendee upon the contract of sale and recover judgment, he cannot, in a subsequent action based on the fraud, pursue the goods or their proceeds, either in the hands of such vendee or of a third person. (Lloyd v. Brewster et al., 4 Paige R. 537)
    It seem.s to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estop Sweet from claiming property in the wool, bought with the moneys for which such judgment was recovered. All causes of action, based on the transaction, are merged in the judgment recovered. . '
    In addition to this difficulty, which seems to be insuperable, Sweet has so far executed the judgment, that he has Sherwood in custody, under an execution against his body, issued on such judgment. This is a satisfaction of the judgment in such sense, that, while the imprisonment lasts, no proceeding can be taken against his property to obtain payment.
    The judgment on which he is imprisoned will not be set off against any other judgment in his favor. (Cooper v. Bigalow, 1 Cow. R. 57.) A creditor’s bill will not lie on such a judgment to reach his equitable estate. (Stilwell v. Van Epps, 1 Paige R. 615.) Nor will an action lie against the sureties in a bond given to stay the issuing of an execution ninety days, although conditioned to pay the damages and costs, with interest, before or at the expiration of ninety days. (Sunderland v. Loder, 5 Wend. R. 58.)
    A consent that the debtor go at large is an absolute discharge of the judgment. (9 Cow. R. 138.)
    I think there is a marked distinction between a case like this, and an owner of a chattel suing one person and recovering against him in trover for converting it, and subsequently suing another person for a separate and distinct conversion of the same property.
    In this State it is held, that a judgment against one, and his imprisonment, without actual satisfaction, is no bar to a subsequent action against the other. (Osterhout v. Roberts, 8 Cow. R. 43.)
    The rule in England is otherwise; and it has recently been held there, as it was held in Brown v. Wotton (Cro. Jac. 73), that a recovery in trover for a permanent conversion, vests title in the defendant, by relation from the time of the conversion. (Buckland v. Johnson, 26 Eng. L. & Eq. R. 328.)
    This is not the case of an owner, suing a second party for converting his property, after having obtained judgment and execution against another party for a separate and distinct conversion of the same property.
    In this case, after Sherwood had sold and disposed of the wool, Sweet, with knowledge of the fact, sued him to recover back the money advanced to purchase it, and recovered a judgment for such moneys, with interest.
    And Beale and Adams who received the wool from the plaintiff (to whom Sherwood had transferred it), to sell on the plaintiff’s account, instead of paying the proceeds to the plaintiff, paid them to Sweet, and insist that the wool was his, and that they had a right to pay the proceeds to him, he having demanded them as owner.
    If the judgment recovered by Sweet against Sherwood estops the former from claiming ownership of the wool as against the. latter, it also estops him from making such claim as against the plaintiff.
    Beale and Adams’ defense is based solely on the right of Sweet to claim the proceeds of the wool as against the plaintiff; and if he cannot sustain such a claim, they have no defense.
    I think Sweet’s rights are merged in his judgment, and the remedies provided by law to obtain payment of it; that in contemplation of law, it is to be treated as satisfied while the imprisonment of Sherwood is continued, and that the motion for a new trial should be denied.
    Motion denied with $10 costs.
    From the order denying the motion, and from the judgment entered on the verdict, this appeal is taken.
    
      James C. Carter, for Appellants.
    I. No question was made at the trial but that, aside from the effect of the judgment and execution, the defense pleaded was a valid defense. There can be no doubt that it is a good defense to the action. (Ogle v. Atkinson, 5 Taunt. 759 ; Hardman v. Willcock, 9 Bing. 382 ; King v. Richards, 6 Whart. 418 ; Bates v. Stanton, 1 Duer, 79.)
    II. All evidence tending to prove the defense having been excluded for the reason above stated, it must be assumed, for the purposes of the present argument, that the facts set up as a defense were true.
    III. These facts being taken to be true, it follows, as a necessary consequence, that at the time of the commencement of the action by Sweet against Sherwood, the title to the wool, which was then in the hands of Beale & Adams, the defendants, was in Sweet; and it was competent to him to assert that title in any of the customary methods, by replevin, by trover, or by a suit for the proceeds ; and that the defendants would be liable to him for the proceeds should they have paid them over to the Bank of Beloit after the notice which Sweet gave them. (See authorities before cited.)
    IY. The main question, therefore, on this appeal, is exactly this: whether it was the effect of the judgment and execution to defeat Sweet’s title and transfer it to the Bank of Beloit?
    Y. The recovery of the judgment per se and without the issuing and execution of the ca. sa. had no effect whatever on the title to the wool.
    The well considered case of Hyde v. Nolle, (13 N. H. 494,) is a full and explicit authority, never, it is believed, doubted or contradicted upon the question raised by this appeal.
    VI. It may be claimed that the judgment against Sherwood would bar a subsequent action of trover against him by analogy to the doctrine which was in an early case laid down in England. (Adams v. Broughton, 2 Strange, 1078.) That as a judgment in trover for the value of the article converted, vests the title in the wrong-doer, so here Sweet having recovered a judgment against Sherwood, not indeed in trover for the value of the wool, but for the whole money which was to be expended in its purchase, the title must be considered as having vested in Sherwood. This ground is clearly untenable.
    1. If the doctrine thus invoked were correct, still the present case does not fall within the scope of it. The judgment of Sweet against Sherwood is not in trover, nor is the amount of it at all dependent upon the value of the wool. The doctrine in question, so far as it has any foundation at all, is founded upon this,—that a judgment in trover for the value of an article affords the plaintiff the means of enforcing payment of such value, and is therefore in contemplation of law equivalent to such payment. 
      Solutio pretii emptionis loco habetur. But this doctrine would have no application to a judgment which was not founded upon the value of an article, but simply upon the breach of a contract.
    2. But the doctrine itself above alluded to never had any permanent foundation in ' the English law, and has been rejected in this country and in this State by a weight of authority which is entirely decisive. An actual satisfaction of judgment in trover is indeed solutio pretii, and changes the title, but nothing short of actual satisfaction.
    •3. The correct doctrine on this point is laid down in Jenkins’ Centuries, (4 Cent. 189.) Adams v. Broughton, (2 Str. 1078,) does not, when properly understood, announce a different doctrine, as it is to be presumed, from the report of the case, that the damages had actually been received. The case of Brown v. Wootton, (Cro. Jac. 73,) proceeds upon a different, though erroneous principle, namely, that when judgment in trover or trespass has been recovered against one, you cannot have another action of trespass or trover against another who was guilty of the same identical trespass or conversion; for the reason that by the first judgment you have rendered what was before uncertain to. certainty. Buckland v. Johnson, (26 Law and Eq. 328,) does not decide that a judgment in trover per se changes title.
    4. It is now settled beyond all question in this State and elsewhere, that the mere recovery of judgment in trover, without certain satisfaction, does not affect the title of the property converted, and does not bar another action against another person for a subsequent conversion of the same property; and the case of Adams v. Broughton, so far as it has been interpreted as establishing a contrary doctrine, has been decisively overruled. (Osterhout v. Roberts, 8 Cowen, 43 ; Sanderson v. Caldwell, Aikens, 195 ; Sharp v. Gray, 3 B. Monroe, 4 ; Eliot v. Porter, 5 Dana, 299.)
    5. The authorities above cited apply precisely to the case at bar in the aspect in which it is presented under the sixth point, inasmuch as the question presented is exactly the same as if the suit was trover by Sweet against the Bank of Beloit.
    VII. Nor is the judgment obtained by Sweet a bar to any subsequent claim by him of property in the wool, on the principle contained in the case of Brown v.Woott(m above cited,—namely, that all Sweet’s rights of action are reduced to a certainty by his judgment, and he is confined to the relief which such judgment affords him.
    1. The case of Brown v. Wootton is based upon a strange error, compounded of a notion derived from the doctrine of res adjudicata, with another supplied by the doctrine of election and waiver of remedies. The case itself, and the doctrine declared in it, has been generally rejected as unsound. (Livingston v. Bishop, 1 John. 290 ; Sheldon v. Kibbe, 3 Conn. 214 ; Osterhout v. Roberts, supra.)
    
    2. If it be true that after judgment against one trespasser, you cannot proceed to judgment against another guilty of the same trespass, it would follow that after judgment against one, upon a joint and several contract, you could not proceed against another severally liable on the same contract — a doctrine to disprove which requires no citation of authorities.
    3. The true rule is, that the liability for torts is, in most respects, like that on joint and several contracts, and in either case you may proceed successively to judgment against each one liable until an actual satisfaction is obtained. (Livingston v. Bishop, supra ; Sheldon v. Kibbe, supra ; Osterhout v. Roberts, supra ; 2 Williams’ Saunders, 148, n. b.; Drake v. Mitchell, 3 East. 258 ; Brooke’s Ab. Judg. Pl. 98.)
    VIII. As to the effect of the execution. Wo think it has now been established that the judgment recovered by Sweet would have been no bar to a subsequent action of trover against him, nor to a subsequent action of trover against the Bank of Beloit. We also hold it to be clear that if the judgment would not bo a bar to such subsequent action, satisfaction of the judgment, even if actual, could not make it a bar.
    1. Payment of a judgment adjudges nothing, nor does an execution, even if satisfied. Whenever the question of res adjudícala arises, it is immaterial to look beyond the judgment to see whether it has been satisfied. The admissibility of such judgments and executions in evidence as bearing upon the matter of - damages is another and very different question. .
    2. The question of the effect of judgments upon subse- ■ quent suits may arise in several ways.
    
      а. In a case which presents an election and waiver of remedies. Here the judgment itself, without satisfaction, is a bar to the inconsistent remedies against the same, and, perhaps, another person. .And this not on the principle of res adjudícala, but of estoppel.
    
    б. Where a subsequent action is brought for the same cause. Here the judgment itself, without satisfaction, is a bar to the action if brought against the same person on the principle of res adjudícala. If, however, it is brought against another person in a case of tort, or several contract, the judgment itself is no bar. The parties not being the same, the principle of res adjudícala has no application. The judgment, however, if satisfied, is a bar, on the principle of payment; and if the action be trover, the title to the property converted is changed, on the principle of solutio pretii emptionis loco habetur.
    
    IX. But whatever may be the effect of a satisfied as distinguished from an unsatisfied judgment, the satisfaction must be actual and not technical.
    X. The positions we have taken are in no respect in conflict with a class of cases holding a doctrine nowhere denied, that while a judgment is satisfied, even if but technically, it cannot be made the foundation of any proceeding to recover the amount of it from the debtor, as by creditor’s bill or set-off, nor any action be maintained against a mere surety for the debt or demand thus merged in judgment.
    
      • XI. If the question we have discussed were not settled by authority, and was to be decided upon the broadest considerations of expediency and justice, nothing could be urged against the doctrine we have maintained, except an occasional circuity and inconvenience, to which wrongdoers would be subjected, as a consequence of their misdeeds. It involves no absolute injustice even to them." On the other hand, the doctrine would be found to be sustained by the most obvious suggestions of good sense, and by the clearest equity. The judgment appealed from should be reversed, and a new trial ordered, with costs to abide the event.
    
      S. Sanxay, for Respondent.
    I. Sweet having taken Sherwood in execution, his claim, arising out of his transactions with Sherwood, is satisfied. (Cooper v. Bigalow, 1 Cowen R. 56.)
    II. If the defendants were to succeed in their defense in this action, it would be in law and in fact a judgment in favor of Sweet, the defendants simply pleading title in Mm. This could never be allowed.
    1. His claim is satisfied by his judgment and execution against Sherwood.
    2. It is familiar law that “ no party is entitled to two judgments for the same cause of action, or for the same matters litigated.” And in this case Sweet must stand precisely as if he had been brought in as a party under § 122 of the Code.
    III. Sweet, having brought suit and taken judgment against Sherwood, discharges all other claim or remedy he may have. There is some confusion in the cases in reference to the terms by which the effect of this principle is illustrated. The result of this doctrine is sometimes called “a merger,” sometimes “ an estoppel,” sometimes “ an extinguishment,” sometimes “res adjudicata,” sometimes “evidence of satisfaction,” and sometimes it falls within the phrase of “ evidence of an election of remedies.” (Pierce 
      v. Kearney, 5 Hill, 85, 86, per Nelson, Ch. J.; see also, 18 J. R. 459 ; 13 Mass. 148 ; 13 Seargt. & Rawle, 288 ; Cowen, J. in Pierce v. Kearney, 5 Hill, 93, 94 ; see also, a very clear exposition of the principle, by Ch. J. Gibson, in Jones v. Johnson, 3 Watts & Sergt. 276.)
    The following cases relate to the effect upon the party making the election. Its description by Dyer will be found in. Dash v. Van Kleeck, (7 J. R. 501.) See also, 4 J. R. 469, 474 ; 13 J. R. 121 ; 1 J. R. 33 ; 8 J. R. 115 ; 1 Watts and S. 83 ; 2 Burrow, 1021, cited by Ch. J. Taney, 3 Howard, 100 ; 1 Bos. and .Pul. 630, note 632 ; 1 Pick. 62 ; 5 Greenl. 147 ; 2 Bus. (S. C.) 392 ; 2 Rawle, 350, Huston, J.; 7 Seargt. and Rawle, Gibson, J. 358, who refers to the consequences of a suspension of remedies and its effects, and he puts the order of the court, the intervention of the law, and the laches of a party on the same footing so far as relates to the consequences upon a party. See also, Seargt. and Rawle, 286, Duncan, J. The following cases refer to the question of waiver, which sometimes gets mixed with that of election: 1 Hill, 240, 242; 9 J. R. 164; 11 J. R. 241.
    Where a tort is committed, it may be waived, and a remedy may be had upon the implied contract. (2 Stark. Ev. 110, 195; Bull. N. P. 113.)
    You may proceed upon either, but if you proceed upon the latter, the former is waived.
    As to the effect of the judgment in Sweet’s suit against Sherwood : Kingsland v. Spalding, (3 Barb. Ch. 341 ;) Wood v. Jackson, (8 Wend. 9 ;) Bruen v. Hone, (2 Barb. 586 ;) Embury v. Conner, (3 Comst. 511 ;) Nicholl v. Mason, (21 Wend. 339 ;) Thomas v. Rumsey, (6 J. R. 26 ;) Alexander v. Fink, (12 J. R. 218.)
    “ A judgment extinguishes the demand, and if the plaintiffs have two actions for the sáme cause, a judgment in one is a good bar to the other.”
    Applying this rule to the hypothesis of Sweet having a cause of action against the Bank of Beloit, or defendants here, upon the same transaction, or growing out of the same matter, as that upon which his judgment against Sherwood was recovered, and what must be the conclusion ?
    Sweet, having resorted to the remedy which he did against Sherwood, had he failed in it, or received inadequate damages, could not afterwards have resorted to any other action, though of a different species, to recover damages for the same injury. (Burnett v. Smith, 4 Gray, 50.)
    
      A fortiori. , If he could not against Sherwood, he could not against any one standing in privity or claiming through him. (See also, Hanna v. Pegg, 1 Black. 181.)
    The plaintiff cannot have a defendant arrested, and also have the property delivered to him. (Chappel v. Skinner, 6 How. P. R. 338 ; Hinds v. Twiddle, 7 How. Pr. R. 278 ; Maxwell v. Farnam, 7 How. 236.)
    IV. It may well be doubted whether, upon the facts set forth in the answer, Sweet could follow the -wool into the hands of plaintiff. There would seem to have been such a conversion by Sherwood as to render it impossible for Sweet to.preserve a specific property in the wool.
    V. It would also be impossible for the defendants, as bailees to defeat the claim of the plaintiffs, their bailors, by merely setting up a naked claim of a third person.
    The bailor may recover of his bailee without proving his right of property in the goods;, until the goods are seized by the right owner the bailee is compelled to restore the goods to the person from whom he received them, whose title he cannot controvert. (Roll. Abr. 607 ; 1 Bac. Abr. 369 ; McGaw v. Adams, 14 How. 461.)
    It is alleged in the complaint that the plaintiff directed the defendants to sell the wool for cash. This is not denied in the answer.
    The judgment below should be affirmed.
   Robertson, J.

—The reply in this case is confined to simply putting in issue the facts set up in the answer, and did not claim any estoppel of any kind. It was formerly the rule, that the benefit of an estoppel must be claimed in pleading; otherwise, the whole matter was open to re-inquiry. (Kilheffer v. Herr, 17 Serg. & Rawle, 319, 322.) It is possible no reply was necessary in this case; and, therefore, the plaintiffs may not be precluded by having put one in without claiming the estoppel; but it • is not a question free from doubt.

It is evident that the admission and exclusion of the evidence, objected to or offered on the trial, raise the question whether the judgment and execution in the previous action estopped the defendants, in this suit from setting up the title of the goods, for whose proceeds this action is brought .to be in Sweet at the time of the commencement of this action; that being really the question under the pleadings, and not whether they were his at the time of the trial. Such question of estoppel requires a careful examination of the nature of the judgment in that action, and the mode in which it operates on parties and privies, so as to estop them from setting up any of the same matters in any other action. It will be found, on such examination, that unless such judgment operated as 'res judicata upon tlje title of Sweet, and the right of the defendants in this case, as claiming under him, its posteriority to the commencement of this suit will be material in reference to such rights.

I assume that the defendants had a right to set up title in Sweet, and a liability to him for disposing of his goods without his consent, although they received them from the plaintiffs and promised to account for them, otherwise there would be an end of the case; for. this lies at the basis of the defenses. The real question between the parties was, whether Sweet owned the "goods at the time of the commencement of this suit. It might admit of some doubt whether, if Sweet now sued the defendants for the value of the goods, he would not be precluded by his judgment against Sherwood; but the question is, whether he would have been so when this action was commenced. If Sweet had a choice of remedies against Sherwood, he would not be bound by any action' brought by him to obtain any one until judgment in such action; because, until the trial, he had a right to discontinue on paying costs; (Averill v. Patterson, 10 How. 85 ; Schenck v. Fancher, 14 Id. 95 ;) and the form in which he alleged the wrong to have been done him, in the discontinued action, could not bind him in a second action. At least, no case has yet gone that length. (Hull v. Blake, 13 Mass. R. 153, 155 ; Sweigart v. Frey, 8 Serg. & Rawle, 299, 305.)

The first question arising-on such former judgment is, in what way does it preclude the defendants from proving the truth as to the title ? Clearly, not as an adjudication upon any litigated matters. There is no allegation in the pleadings in such action respecting the title to the goods claimed. If it had been material, it would have been alleged by the defendants in that action, that Sweet owned the property, which would necessarily have been denied by him, to enable him to recover for complete non-performance of the contract by Sherwood. If the decision on such an issue had been that he had no title, it would have been a decision in his favor; not against him. Would the plaintiffs in this suit have been bound, in such case, by a finding in favor óf Sherwood, under whom the plaintiffs claim, that Sweet had title ? Upon no pretense can such judgment be made an adjudication upon any question to bind the defendants, who were not parties or privies, or even notified of its existence; and who "were powerless to intervene therein for their own protection.

But it is urged that the defendants are estopped by the conduct of Sweet, in bringing his action in the form in which he did, carrying it to judgment, and charging Sherwood in execution. If so, it would plainly be by his act in pais, and not by any judicial action of the court in which the action was pending, that the estoppel would be wrought; if, indeed, the term “estoppel” is ever appropriate to any act but those of the parties to it. (See Kilheffer v. Herr, ubi sup. ; Marsh v. Pier, 4 Rawle, 273.) If so, unless the mere bringing of the action in the form in which it was brought, destroyed all claims to the wool in question, the taking of the judgment and issuing of execution in such action were purely the acts of Sweet, and could not alter the defendants’ rights as they stood at the leginning of this action. The form of the complaint in such action was ambiguous, and admitted of a recovery by Sweet, either of damages for non-performance of the contract by Sherwood; or of the money advanced by him to the latter to enable him to buy the wool in question, upon a rescission of the contract which Sweet had a right to make in consequence of Sherwood’s failure to perform it. If Sweet afterwards elected to take damages for the non-performance of the contract, he might have recovered the value of the wool which Sherwood was bound to deliver; and, possibly, the money advanced might be assumed to be the value of such wool. But, in fact, the referee gave judgment, as Sweet elected to take it, for merely the money advanced by him, and interest from the time of the advance; thus considering the contract as rescinded. Sweet did not allege in the complaint, that the wool was not his; and if he had chosen to confine his claim to damages for not forwarding the wool to him after it was bought, thereby reserving to himself a right of action for the goods, as his property, he might have done so under the state of facts set out in such complaint. It was, therefore, by virtue of the claim before the referee of the money advanced as damages, and the judgment obtained thereupon, that Sweet debarred himself of any claim to the goods; and not by the form of the summons, or complaint in the action. But until Sweet determined of which remedy he would avail himself, and what damages he would demand, he had a right to discontinue such action, and sue the defendants for the wool in case it belonged to him. The fact that Sweet, by his claim for damages, precluded himself from claiming the goods in February, 1860, by the judgment in his favor, does not help these defendants, who might be rendered liable in this suit for the proceeds received by them, and costs in consequence of Sweet’s claims. When the defendants were sued in this action, and set up their defense, they had no means of knowing what course Sweet intended to pursue; and, therefore, they conld only defend themselves by compelling the plaintiffs to make out their title to the goods; not by an unanticipated future action or election of Sweet, but by the facts, as they existed at the time of the commencement of this action. It is possible that the defendants might not be able to make out, by evidence, that the wool was Sweet’s when this action was commenced'; but they were entitled to make the attempt without being barred by his subsequent conduct; and if they can prove acts of acceptance by him, there is no reason why they should be prejudiced by the neglect of Sherwood.

The plaintiffs commenced this action at the risk of being obliged to make out their case, and allowing the defendants to make out theirs by evidence at large. They can derive no benefit from an estoppel after it was commenced in favor of Sherwood.

I think, therefore, the defendants should have been allowed to introduce evidence to make out their second and third defenses if they could; that the act of Sweet, in conducting his action against Sherwood to judgment, and thereby terminating his election, after the commencement of this suit, was not an estoppel against the defendants and in favor of the plaintiffs; and that the judgment in such action was therefore not a bar to the defendants’ defense in this.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

Hoffman, J.

—Sweet entrusted Sherwood with money to purchase wool, to be delivered for the use of the latter, Sherwood receiving compensation in one or other of the modes prescribed. Sherwood having used the money in buying wool, and misapplied a considerable portion of such 'wool, Sweet sued him, and recovered judgment for the balance of the money advanced; allowance being made for the value of the wool properly delivered. The action was entirely for a money demand; “ the recovery of money only.” (Code 129, sub. 1.)

The-Chief Justice in his opinion on a motion for a new trial says: “ It seems to me clear, upon elementary and fundamental principles, that the action which was brought by Sweet against Sherwood, and the recovery of judgment therein, estop Sweet from claiming property in the wool bought with the moneys, for which such judgment was recovered. All causes of action based on the transaction are merged in the judgment. Beale and Adams’ defense is based solely on the right of Sweet to claim the proceeds of the wuol as against the plaintiffs; and if he cannot sustain -such a claim, they have no defense.” With these views I entirely concur. I shall refer to a few authorities.to support their correctness.

The general rule is not to be questioned, that a judgment in a case in-which the parties’ cause of action has been litigated, or was raised, and could have been litigated, is a bar to any future litigation of the same point, between the parties' or privies.' It makes ho difference that the object of the first suit was different from that of the second, that is, that a different relief was sought. (Kingsland v. Spalding, 3 Barb. Ch. R. 341, and cases, especially Betts v. Starr, 5 Conn. Rep. 550. See also Ramsey v. Hemdon, 1 McLean, 450.)

It is a bar where the claim is attempted to be used as a set-off, as well, as where it is to support an action. (Jones v. Richardson, 5 Metcalf, 267.)

In Burnett v. Smith, (4 Gray, 50,) the defendant, when sued upon a promissory note, set up false representations as to the value of the goods for which it was given, and succeeded in reducing the recovery, he was held to be barred from any action for damages for the false representations. The court say: “ The principle of waiver of right to an action, is familiarly applied in cases of tortious taking of personal property when the same has been sold, and the avails come to the use of the tort feasor.

“ The party claiming the property has.the election either to sue in trover, or to institute Ms action for money had and received: but in case of a resort to one of these remedies, and a failure to recover at all upon the merits of the v case, or a recovery of inadequate damages, he is then precluded from resorting to another action, though of a different species, to recover damages for the same injury. The evidence upon which the case of the party is to be sustained, is competent in either form of action, and once offered the verdict thereon is conclusive.”

And nothing can be more explicit upon the subject than the language of Justice Bronson in Nicholl v. Mason, (21 Wend. 339.)

There are exceptional cases to this rule, such as where the whole cause of action or right between the parties to the record, is not, and cannot be determined in the action brought, on account of particular rules governing it, or otherwise; or again, where a new action may be had against a new party for the same cause.

Thus in Arnold v. Arnold, (17 Pick. 4,) it was ruled, that a judgment in trespass quare dansum freqit cannot be pleaded in bar to the demandant in a writ of right, even although in the former action, the right of possession and entry, depending on the right of property, was put in issue.

The line of reasoning of Mr. Justice Putnam shows, that to support the plea, would be to efface the distinction universally established between real actions, which relate to the right of possession, and those in which the right of property is to be determined. And he puts the case as to personal property, of a horse taken without consent and sold, and the money applied to the taker’s use. The injured party may have trespass, or assumpsit for the proceeds. Either action is for the saíne cause, the taking and appropriation. If he brought trespass and failed, he would be precluded from assumpsit.

The case of Osterhout v. Roberts, (8 Cowen, 43,) which is relied upon by the plaintiff’s counsel, only decides that where trover was brought against A., and proceeded to judgment and imprisonment on a ca. sa., it was not a bar to another action of trover against B. for the same property. The case bears very little upon the question here. Nothing short of satisfaction was sufficient to change the property.

The case of Hyde v. Noble, (13 N. Hamp. R. 494,) is the strongest I have met with in favor of the plaintiff. But even there, the learned judge says that the judgment against Kenniston (the bailee in the case,) cannot be regarded as an affirmance of his acts, as it might have been had the action been assumpsit to recover the money he «received upon the sale. So far from a ratification of his acts, the action against him treats them all as “ tort feasors.”

I cannot doubt that the ruling upon this point was correct as matter of law.

Do the facts and dates of the respective actions make a difference ?

On the 14th of July, 1858, Sweet commenced his action; his complaint was served the 1th of September, and answered the 15th of December. Judgment was entered the 14th of February, 1860.

On the 3d of November, 1858, the present action was commenced. On the 4th of December the answer was put in, and on the 14th of June, 1860, the trial was had.

The defendants had the task of proving that the notice to them of Sweet’s claim was a valid defense to the plaintiff’s demand. When it was shown that Sweet could not recover, their defense failed. The facts showing that failure were not necessarily to be set up in a pleading. His action of the 14th of July, 1858, was the election to take the particular remedy, and was never abandoned, but prosecuted to judgment, and was. taken before the commencement of the present action.

Again, it is observed by the Chief Justice that the imprisonment of Sherwood on the ca. sa. is a satisfaction of the judgment in such sense, that while the imprisonment lasts, no proceeding could be taken against his property.

The Supreme Court of the United States held that the taking of a defendant’s person under a ca. sa. “operates as a satisfaction of the debt, and for that reason deprives the creditor of all recourse to the lands or property of any description belonging to the debtor.” (Magniac v. Thomson, 15 How. U. S. R. 281 ; Snead v. McCoull, 12 Id. 412.)

In our State, it has been repeatedly decided that as long as the imprisonment continues, there is a virtual satisfaction of the debt and judgment. It is a perfect defense to an action upon a joint liability of another with the imprisoned debtor. By force of a special statutory provision, if the party imprisoned die, or is discharged as an insolvent, his property may be resorted to. (Chapman v. Hatt, 11 Wend. 41 and cases.)

But without examining this point further, we are clear as to the sufficiency of the one before stated to sustain the decision.

The judgment should be affirmed with costs.

Bosworth, Ch. J.

—My brother Hoffman has reached the conclusion that the judgment in this action should be affirmed, and my brother Robertson that it should be reversed.

The conclusions of the latter seem to be based upon the assumption that the defendants’ rights are different from what they would have been if the judgment in favor of Sweet against Sherwood had been rendered before this action was commenced, and that the exception taken raises this question; and that on the facts as they are alleged to have existed when this suit was commenced, proof of the defense pleaded in this suit was admissible; although it might not have been if the facts, as they existed at the trial, had existed when this suit was brought.

I think the case before us furnishes no warrant for this assumption. There was no objection to the admission in evidénce of the record of the judgment in the suit of Sweet against Sherwood, except the objection “ that it was not duly authenticated, and that the judgment should be proved by the original roll on file, or by an exemplified copy.”

The decision excepted to was, “that' the facts thus proved constituted a bar to the defense set up in the answer, and precluded the defendants from proving such defense, and that no evidence could be offered under it and evidence of “the allegations contained in the second and third defenses of the answer ” was excluded.

No suggestion was then made, nor is any contained in the points of the defendants on this appeal, that the case presented any question except as to the force and effect of the facts proved, viz: the recovery of the judgment by Sweet against Sherwood, and the imprisonment of the latter under the execution issued on such judgment.

There having been no objection to the plaintiffs making proof of the facts which, they insisted, were an answer to the matters alleged as the second and third defense, and the decision excepted to being one as to the force and effect of such facts, the only question raised by such exception is the accuracy of such decision. (Belknap v. Sealey, 4 Kern. R. 147, 148.)

If there could have been any question made as to the admissibility of evidence to prove such facts,- under the pleadings as they stood, none was raised, and if any had been made, the court' was competent to modify them so as to make the evidence admissible, upon such terms as it deemed just. No question, therefore, can now be made of the plaintiffs’ right to prove the facts that were proved, and to- have the benefit of their due legal effect.

These defendants, it must be remembered, have entered into no contract with Sweet, and have no rights derived from him. Their contract is with the plaintiffs, and the question is whether they are absolved from performing it by the matters stated in their answer.

The answer to those matters is, that as early as July 14, 1858, Sweet, in the most formal and solemn manner, by the institution of a suit against Sherwood in a court of record, declared his election to repudiate the use which Sherwood had made of the money furnished, and his acts as agent of Sweet, if agent he could be called, and to have a return of his money, with the interest thereon.

That relief, in his judgment, might be preferable and more beneficial than a successful pursuit of the proceeds of the wool, or a judgment against any one, or all, who might have been charged with the conversion of it. On the Ith of September, 1858, he verified his complaint, and the relief it prayed for is a judgment for the balance of the money not accounted for, with interest.

The present action was hot commenced until the 3d of November, 1858. Over three months prior to that, Sweet had taken his position as between himself and Sherwood, and had been seeking to enforce it by an action at law; a position which renounced all obligation to take the wool, and all right to it; a position to which he has at all times since steadily adhered, by prosecuting his action to judgment, and the imprisonment of Sherwood’s body on an execution issued on such judgment.

There was no reason, 'therefore, when this action was commenced, why the defendants should not have paid to the plaintiffs the proceeds of the wool in their hands, according to their contract; and nothing occurred between that time and the trial exempting them from that obligation.

For these reasons, and those assigned for denying the motion made at special term for a new trial, I think the judgment should be affirmed.

Ordered accordingly.  