
    Rice against King.
    NEW-YORK,
    Nov. 1810.
    In an action of a justice of the ?oiii°e aíd S¿denfemtunil* plead" ed a former ac-lion of trespass brought.by the th™sam™stavcs fendauqímvhích dict^and8 judg" ment for the defendant. It was held, that the judgment in the action of trespass for the same goods, was a bar to an action of assumpsit for the same cause.
    The same cause of action is where the same evidence will support though oa. different writs,
    IN error, oil certiorari, from a justice’s court,
    
      King sued Rice before the justice, m an action or assumpsit, for 1,000 hogshead staves. Rice pleaded the general issue; and, afterwards, at the day adjourned for trial, he pleaded a former trial and verdict in bar. The r ■ • former trial was an action of trespass for the same staves, and a verdict was found for the defendant. The plaintiff admitted the truth of the plea; arid proved, in support of his action, that the defendant acknowledged that he had taken a load of staves of the plaintiff, and that e he would take the residue, and pay him. The defend- , , . . r ant proved by a witness, who was a juror on the former trial, that they found a verdict for the .defendant, because it did not appear that the plaintiff had any right to the staves. The justice charged the jury, that, as the former action was trespass, and the plaintiff had not, in that case, recovered any thing for the staves, the judgment in that action was no bar; and they found accordingly for the plaintiff below.
   Per Curiam.

The plea of a former verdict and judgment in the same cause was put in too late, had it been objected to,; but no objection was made, and the plaintiff below admitted the fact of the former suit, but denied it to be a good bar, because that was an action of tres- ■ pass, and this was an action upon the case. The justice charged the jury to the same effect. This charge, and the verdict in pursuance of it, were erroneous. What is meant by the same cause of action, is where the same evidence will support both the actions, although they happen to be grounded on different writs. The plaintiff below brought an action of trespass for the taking of these staves, and failed ; and now he waives the tort, and brings assumpsit upon the same proof. It was.-, shown that the former verdict was upon the merits of the claim, and upon the ground that the plaintiff had no - right to the staves. If he had no right of action against the defendant for the taking of those staves, because he had no right of property, he had no right, without further and different proof, to the value of those staves. The case of Kitchen v. Campbell, (3 Wils. 304.) is to this purpose; and the court of C. B. there held, that as the plaintiffs had formerly brought trover for the goods in question, and had a verdict against them on the merits, it was a bar to an action of assumpsit for the same cause of action.

Judgment of reversal.  