
    [Pittsburg,
    September 11, 1827.]
    CIST and others against ZEIGLER.
    IN ERROR.
    A former verdict and judgment for the plaintiff in replevin, on the issue of no rent in arrear, is a bar to an action for use and occupation, for the same rent for which distress was made, if it appear by the pleadings, that a certain rent was reserved, and that the distress was for the same rent now claimed, whether the former judgment be pleaded as an estoppel, or given in evidence on the general issue.
    Error to the Court of Common Pleas of Butler county.
    
      Case, by Abraham Zeigler against Charles Cist, Daniel Beltzhover and Thomas Cromwell, in which the plaintiff filed the following statement:
    The plaintiff states the cause of action to be, for the use and occupation by the defendants, of certain real property of the plaintiff, situated in the town of Harmony, in the said county, which property of, and belonging to the plaintiff, was, and is known by the name and appellation of the school property, in said town, and which property was used and occupied by the defendants, with the consent and permission of the' plaintiff, from the first day of April, 181S, until the first day of April, 1821, being a term of five years. '
    The defendants pleaded non assumpserunt, and payment with leave to give the special matters in evidence; replication, non solverunt and issues.
    On the trial, the defendants gave in evidence the records of two actions of replevin, in the Court of Common Pleas of Butler county, Thomas Cromwell, Daniel Beltzhover, and Charles Cist, against Abraham Zeigler, and John Branston; No. 13, to April Term, 1820, and No. 33, of the same term, in which actions of replevin Abraham Zeigler avowed for rent in arrear, and John Branston made cognizance, as bailiff; and the plaintiff replied, no rent in arrear, and in No. 13, a verdict was given, that the property be returned to the plaintiff, and six cents damages, and six cents costs; and in No. 33, judgment was confessed by the defendants, that the property be returned, and they to pay the costs; and the defendants insisted, that, inasmuch as the defendant in the actions of replevin had avowed for rent in arrear, and the replication of no rent in arrear having been put into the avowry, and a verdict and judgment rendered in these suits in favour of the said Thomas Cromwell, Charles Cist, and Daniel Beltzhover, the plaintiff could not support his suit against them, for the use and occupation of the premises, during the same period for which he had distrained, and which was passed upon, and decided in the actions of i’eplevin, and that he was barred by the judgment in the actions of replevin. But the court decided, that the judgments in the actions of replevin did not bar the plaintiff from recovering in the present action, to which ojfinion of the court the defendants exeepted.
    The court charged the jury, that if the defendants had occupied the property with the assent of the plaintiff, without any amount of rent fixed, the plaintiff would be entitled to a fair compensation for the occupation of his property; and that if he had shown a parol lease to Schnce and transfer by him to the defendants, under which they entered and occupied, the amount of rent reserved in such lease would govern in this verdict; the plaintiff would be entitled, moreover, to interest, from a reasonable time after the rent became due.
    To this charge the defendants excepted.
    The following are copies of the record in the cases of replevin above referred to:
    
      Butler county, s. s.
    
    Thomas Cromwell, Daniel Beltzhover, and Charles Cist, Abraham Zeigler, and John Branston.
    Court of Common Pleas, April Term, 1820.
    
      Replevin for two cows, two piano-fortes, two settees, as per schedule annexed to writ.
    27th of April, 1820, — rule on part of the defendants to take the depositions of witnesses to be read in evidence.
    On the trial of this cause, ex parte to rule ten days’ notice, April Term, 1821, the defendants avow for rent in arrear, as to Zeigler, and make cognizance as to Branston.
    
    Plaintiffs reply no rent in arrear, issue and rule for trial, and now, to wit, on the 6th of July, 1821, a jury being called, came, to wit, Matthew Thomson, (and so forth,) who fined for the plaintiff six cents damages, and six cents costs. Judgment affirmed.
    
      Butler county, in the Common Pleas of the said county, of April Term, 1820.
    Thomas,- Cromwell, Daniel Beltzhover, and Charles Cist, Abraham Zeigler, and John Branston.
    Replevin for one gig, &c.
    
      Ayres appears, &c.
    
      April Term, 1821, — the defendants avow for rent in arrear as to Zeigler, and make cognizance as to Branston. July, 6 th, 1821, judgment in favour of the plaintiff for costs, and that the property be returned.
    The jury gave a verdict in favour of the plaintiff, for eight hundred dollars, and judgment was rendered thereon. The plaintiffs in error now assigned as errors:
    1. The court erred in deciding, that the plaintiff could support his suit for use and occupation, and was not bound by the judgment in the actions of replevin.
    2. The court erred in charging the jury, that the plaintiff was entitled to recover interest from a reasonable time after the rent became due.
    
      Bredin, for the plaintiffs in error.
    The evidence was given without objection, and the effect of it was before the court, just as if it was pleaded. A party may waive the want of pleading. The same matter was substantially settled in the avowry. Interest on rent is given from the time it was sued for. 5 Serg. & Rawle, 357. Hill v. Miller. 10 Serg. & Rawle, 203. Williams v. Smith. The very fact in this case was put in issue in the replevin. 4 Yeates, 350, Dawson v. Tibbs.
    
    
      Fetterman, contra, cited
    4 Com. 197, Estoppel, E., that former recovery must be pleaded, or it is no estoppel. 2 Johns. 382. Lansing v. Montgomery. Replevin is ex delicto, and cannot be pleaded to an action ex contractu. 3 Wils. 240.
    
      Ayres, same side.
    The very decision in the replevin was, that the proper remedy was an action for use and occupation, He referred to Henwood v. Cheeseman, 3 Serg. & Rawle, 500. Phillips, 225. Where recovery is not pleaded, it goes to the jury who are not concluded by it.
    
      
      Baldwin, in reply.
    If the landlord had recovered in the replevin, he certainly could not in case for use and occupation:— but if there had been a parol lease, he might have recovered, and in that event he cannot now. The jury were instructed to find for him even if there was a lease, making it. the rule of damages. In the actions of replevin, a lease was admitted by the pleading, and the only question was, whether the rent was unpaid.
   The opinion of the court was delivered by

Duncan, J.

If the rules of pleading had been attended to in the replevin causes, and an avowry for a certain sum in arrear, there would have been no difficulty in the question; for then the causes of action, as the avowry is in the nature of a declaration, woul4 have appeared on the record, and the judgment, if the recovery had been for the same premises in the replevin, if pleaded in bar, would have operated as an estoppel; and, if given in evidence in the general issue, would have been equally conclusive. I know there are recent English decisions, that if the former judgment is not pleaded, but given in evidence on the general issue, it is not conclusive on the general issue; yet the law appears to have been settled to the contrary by many authoritative decisions, which I am not inclined to disturb.

Whatever may be the form of action, if the original question appears to have been the same, and the same evidence will support both actions, and judgment be had on the merits, it bars all other actions for the same cause; but, from the loose, inartificial, and unsatisfactory mode of avowing generally for rent in arrear, without a specification of any thing, it may or may not be that the cause of action was the same. It will be matter of evidence what was the cause of action in the former cases — matter not to be tried solely by the record, but a mixed matter, to be tried by a jury.

The fact does not clearly appear on the bill of exceptions, whether or not the former judgments were because the landlord was not able to prove a certain rent which would be the subject of distress, or because he failed in his proof of a demise altogether. In one part of the bill, it would rather appear it was because no certain rent was reserved; but, in another part, the court says, “the landlord has shown a parol lease to Schnee, and transferred by him to the defendants, under which they entered and occupied;” and direct the jury, that the amount of rent in such lease, ought to govern them in the verdict. Now, if the defendants did enter and occupy under the parol lease to Schnee for a reserved rent, then, undoubtedly, the landlord could have distrained the defendants’ goods found on the premises, and have avowed for that reserved rent in the replevin causes, and the entry and occupation under that parol lease to Schnee; in which case the former judgments would operate as an estoppel if pleaded in bar, or as conclusive in evidence, on the general issue, against the plaintiffi

A judgment, in every species of action, is final for its own purpose and object, concludes the subject matter, and is a bar to further litigation; the judgment following the particular right or claim in personal actions; as, here, avowry for rent in arrear, which, being in the nature of a declaration, on the issue no rent in arrear, would be conclusive evidence in every other species of action where the rent was again demanded; the verdict would be a bar— call it estoppel or conclusive evidence, its effect would be the same.

The judgment is therefore reversed, and a new trial awarded; in which the parties will take care to have the facts precisely stated. The court do not wish to anticipate the final result, or give any opinion to foreclose the parties, further than has been made pecessary to the immediate decision, and desire both parties to understand this. This cause went to trial on a statement; this statement is entirely defective; and, if objection had been taken on this ground, the judgment must have been reversed; for the plaintiff has omitted to state that which is an essential part of the statement, the whole amount which he believes is justly due to him.” How could the court, if the defendants had made default, give judgment against them for any certain sum, which is made their duty in all cases under the statement law.

Judgment reversed, and a venire facias de novo awarded.  