
    [Pittsburg,
    September 26, 1825.]
    GARVIN against DAWSON.
    IN ERROR.
    IF, for the same cause of action, a suit be brought, to recover double the value of the goods wrongfully distrained, and another in case, at common law, and there are awards of arbitrators in each, finding no cause of action, and one be appealed from, the award not appealed fi-om may be pleaded in bar, in the other suit.
    
      Query, Whether a prior judgment in the latter, may not, in the former suit, be given in evidence on the general issue, or if the court would not relieve on motion.
    The plea of judgment recovered, may be addded under the act respecting amendments, during the trial.
    In the Court of Common Pleas of Fayette county, to which this writ of error issued, the plaintiff in error, Edward Garvin, who was plaintiff below, brought two suits against George Dawson, the defendant in error, and defendant below, one on the act of the 21st of March, 1772, sect. 3, to recover double the value of his goods, •wrongfully distrained by the defendant; and the other, an action on the case, at common law, for the same cause, and alleging his complaint in the same words. The first was commenced in January, and the second in February, 1822. Both were returnable to March term. There were declarations filed in both, so that it conclusively appeared, that both were for the same cause of action. The deféndant arbitrated both, 'and on the 23d of December, 1823, reports were made in both cases, that the plaintiff had no cause of action. On the 12th of January, 1S24, the plaintiff appealed from the decision in the first cause, but the decision in the second remained unappealed from, and was a judgment in full force.
    At June term, 1824, the present action was tried, on the plea •of not guilty, and there was a verdict for the plaintiff. On the 10th of January, 1S24, this verdict was set aside, and a new trial granted; and on the 16th of March, 1825, a jury was impannejled, and after the plaintiff’s testimony was closed, and the defendant bad examined his witnesses in part, the defendant offered a second plea, stating the, judgment in the second action as a plea in bar, and averring it to be for the same cause of action. The plaintiff objected to this plea, as coming too late, being a plea after the last continuance, but the court received it. ' He then prayed oyer of the record of the former judgment, and demurred, and the defendant joined in'demurrer. The jury was dismissed, and judgment given for the defendant on the demurrer.
    
      Alexander and Lyon, for the plaintiff in error,
    now contended, 1. That the plea ought not to have been received. It was not pleaded till the 16th of March, 1825, though the judgment in the second suit was in December, 1823. It could only be pleaded puis ■darrien continuance. Wilson v. Hamilton, 4 Serg. & Rawle, 238. 1 Chitt. Pl. 532, 650, 651, 652. 7 Johns. 194;
    
      2. The plaintiff was entitled to both the actions which he brought. 6 Serg. & Rawle, 288. 2 Inst. 200. 1 Com. Dig. 322, 323. A plea of subsequent suit, brought in another state, is not good, in abatement of the first suit. 1 Wheat. 217.
    
      Coulter and Kennedy, contra.-'
    1. The court had a right to admit the additional plea during the trial. It may be wrong to admit a plea in abatement, puis darrien continuance, unless pleaded immediately after the continuance. But the case is different, where the plea is on the merits, and in bar, as wa*the case here. The act of assembly, allowing amendments, certainly authorized the court to admit this plea. They cited 9 Johns. 255. 1 Chitt. Pl. 637. 2 Johns. 295. 2 Lutw. 1178.
    2. The plaintiff endeavoured, by bringing two suits, to obtain two satisfactions for the same injury. He has had one cause tried, and decided against him, on the point in dispute in this suit.
   The opinion of the court was delivered by

Duncan, J.

It is impossible to doubt, but that both suits were for the same cause. The rule of law is, nemo debet bis vexari pro eadem causa.. Where one is barred in any action, real or personal, by demurrer, confession, verdict, (and here the report of arbitrators was the same thing as a verdict,) he is barred as to that or the like action of the same nature, for the same thing, for ever. In persUhal actions, the bar is universal; upon real actions he may have an action of a like nature. Here, by aetion of a like nature, must be meant aetion in a similar degree, not merely those which have a similitude of form. All personal actions are of the same degree, therefore each is a perpetual bar. Ferrer’s Case, 6 Co. 7. Cro. El. 667. Hitchin v. Campbell, 2 Wm. Bl. 827. 5 Co. 61. Sparry’s Case gives the history of this rule, and shows when it commenced its progress, and the legal distinctions. The rule will as well apply where one action is on a statute, and the other at common law. For, though the statute gives a remedy in a matter actionable at common law, the remedies are cumulative. But, by that is not meant that they are double remedies. The party may Sue at common law, and waive his statute remedy, and so vice versa. Reese v. Emerick, 6 Serg. & Rawle, 288. But, by bringing one aetion, he waives the other.

I am riot quite persuaded, but that the evidence given of former judgment might have been given, on the general issue. If it had been the action on the case, at common law, this clearly might have been done. That action is-not siricti juris; and, whatever would defeat the action, may bp given in evidence on this issue. Bird v. Randall, 3 Burr. 1363. And it was suggested, by Mr. Justice Dennison, in that case, that where both actions conclusively appeared on the record, to be for the same thing, the count would not put the party to plead, but relieve on motion.

But, waiving the consideration, whether or not it could be given in evidence on the general issue, it is certainly a meritorious and conclusive plea, and it would be hard to foreclose the party, by his step in not pleading it in time. And this is one of the cases, in .which, by the provision in the act for regulating arbitrations and proceedings in courts of justice, was intended, and to which it maybe justly applied, ‘íthat no plaintiff shall be nonsuited for informality in any statement, or declaration filed, or by reason of any informality in entering a plea; but when, ill the opinion of the court, such informality will affect the merits of the cause in controversy, the plaintiff shall be permitted to amend his declaration, and the defendant may alter his plea or defence on or beforé the trial'of the cause.” The court is made the judge, whether it would affect the merits of the cause; and here the court decided, and most justly, too, that it would. This provision in the act may be used sometimes as an instrumentof vexation and delay; but this plaintiff cannot justly complain of vexation, who has himself vexed the defendant twice for the same thing. The reason for receiving a plea is much stronger than amending a declaration. The court will not suffer, under pretence of amendment, after the jury is sworn, a new cause of action to be introduced; because, then he might bring a new action, and recover. But in case of the refusal of a new plea, the defendant would be gone for ever; and he certainly may be permitted to add a new plea, however inconsistent it may be with any former plea. The plea, therefore, was properly received, and the plaintiff, by demurring to it, admitted its truth. The defendant, by putting in this plea, withdrew his other plea, and the judgment absolute only could be rendered; the defendant had nothing further to answer, and, therefore, there could not be a judgment of respondeat ouster: The plea is not very formally drawn, but the informalities could only be taken advantage of on special, and not not on general demurrer.

Judgment affirmed.  