ever, the pendency of a suit in an inferior court cannot be pleaded to an action in one of the Courts at Westminster for the recovery of the same demand (y).

But when a judgment has been already obtained in a prior action by the plaintiff against the defendant for the identical demand, the contract or obligation, in respect of which such demand accrued, is merged by the superiority of the security thus acquired-transit in rem judicatam; and the creditor can no longer sue upon the original promise or demand, though it accrued upon a specialty. If he do so, the defendant may plead in bar that the plaintiff has already recovered judgment against him for the same cause of action (≈).

If the cause of action in the two suits be identical, a judgment recovered is a defence, although the forms of action were different. Thus a judgment in debt is a bar to an action of assumpsit for the same debt (a).

Where the declaration in the first action is framed so as to admit of evidence of debts then existing, and which are sought to be recovered in the second suit, and the defendant suffered judgment by default in the first action, it will be presumed against the plaintiff that he therein recovered such debts (b). If, however, he can show that having several claims, he gave no evidence whatever, in the former action, upon the causes of action which form the subject of the second suit, the judgment which he before obtained will not bar such second action (c).

In Hadley v. Grein (d), it appeared that a landlord sued his tenant for rent, and on the money counts, and gave particulars, on the count for money had and received, for a quantity of stone quarried and carried away by the defendant. At the trial he took a general verdict, but for the amount of the rent only. The

(y) Id.

(z) Id.; Per Bayley, B., in Siddall v. Rawcliff, 1 C. & M. 490; 3 Chitty Pl. 5 ed. 929, 956 a, 1062. This defence should now be pleaded specially, even in assumpsit. Plea that in a former action, defendant paid a sum into court, with costs, in satisfaction. Power v. Butcher, 10 B. & C. 329. A cognovit for part only of a larger sum due, secured by a promissory note, and a receipt for debt and costs, bar a second action on the note;

see Siddall v. Rawcliff. In general, a recovery against one of two joint debtors destroys the debt. See, however, an exception Lechmere v. Fletcher, 1 C. & M. 623, infra.

(a) Slade's Case, 4 Co. Rep, 94 b ; Com. Dig. Action, (K 3); Thrustout v. Crafter, 2 Bla. R. 827; Phillips v. Berryman, 3 Dougl. 286.

(b) Lord Bagot v. Williams, 3 B. & C. 235; 5 D. & R. 87, S. C. (c) Seddon v. Tutop, 6 T. R. 607. (d) 2 C. & J. 374.

plaintiff brought another action against the defendant in case, for quarrying and carrying away the stone; and, a few days before the trial of the first action, delivered a particular in the second action for the same stone, exactly corresponding with the particular delivered on the count for money had and received in the first action. It was held, that the recovery in the first action was no bar to the plaintiff's recovering in the second.

If a plaintiff having several causes of action against a defendant, on the trial, offer evidence on those causes, and fail for want of sufficient evidence to establish some of them, he cannot bring another suit for those causes of action on which he failed (e). But where the plaintiff recovered only nominal damages in the first suit, by reason of a technical objection precluding inquiry as to the amount due, a second action is not barred. Therefore where in an action of assumpsit improperly brought against an administratrix, she pleaded in abatement that others were jointly liable, which she failed to prove, in consequence of which the plaintiff recovered a verdict, with 1s. damages, it was held, that such verdict did not amount to satisfaction, so as to bar the plaintiff from recovering against the other contractors (ƒ).

One of three joint covenantors gave a bill of exchange for part of a debt secured by the covenant, on which bill judgment was recovered. In an action of covenant against the three, it was held that such a judgment was no defence; for though it was stated in the plea that the bill was given in payment and satisfaction of the debt, it was not averred that it had been accepted as satisfaction, or that it had, in fact, produced it (g).

If the plaintiff has before sued the defendant upon the same supposed causes of action, and, in such former suit, a verdict passed for the defendant, the latter shall not be vexed by a second action for the same matter (h). In such case, the former verdict in the defendant's favour, upon the merits of the same question, operates against the plaintiff as an estoppel (i).

(e) Stafford v. Clark, 2 Bing. 382, per Best, C. J.; 9 Moore, 738, S. C.

(f) Godson v. Smith, 2 Moore, 157; Ferrers v. Arden, Cro. El. 668; 2 Saund. 47; Lechmere v. Fletcher, i C. & M. 623.

(9) Drake v. Mitchell, 3 East, 251. (h) See Vin. Ab. tit. Judgment,

(Q4); Lampen v. Kedgewin, 1 Mod. R. 207. See an exception, Lechmere v. Fletcher, 1 C. & M. 623, infra.

(i) Vooght v. Winch, 2 B. & A. 662. There the action was in cuse; but the principle is equally applicable to an action on a simple contract, &c.

In the case of the condemnation of a ship, the sentence of a foreign court of admiralty, of competent jurisdiction, is binding upon all parties, and in all countries, as to the fact upon which the condemnation proceeded, where such fact appears on the face of the sentence free from doubt and ambiguity. But it is at the same time as well established, that in order to conclude the parties from contesting the ground of condemnation, in an English court of law, such ground must appear clearly upon the face of the sentence; it must not be collected by inference only, or left in uncertainty whether the ship was condemned upon one ground which would be a just ground of condemnation, by the law of nations, or on another ground which would amount only to a breach of the municipal regulations of the condemning country (k)·

It was laid down by De Grey, C. J., in the Duchess of Kingston's case (7), that the judgment of a court of concurrent jurisdiction, directly upon the point, is, as a plea, a bar; or, as evidence, conclusive, between the same parties, upon the same matter directly in question in another court.

But if a party rely upon a verdict and judgment in his favour, recovered in one of our colonies, and affirmed by the King in Council, upon the question again sought to be investigated in an English court, he must show by his plea that the judgment was final and conclusive in the colony itself, so as to bar the plaintiff from another action there (m). And if it appear on the face of a French judgment that the French court proceeded on a mistake of the law of England, such judgment has no operation here upon the matter in which the error occurred (n).

7thly. ARBITRAMENT AND AWARD (0).

A plea of arbitrament and award, as it is technically termed, may effectually be pleaded in bar (p), where an action is brought for the recovery of unliquidated damages, arising from a tort connected or unconnected with a contract; and an award has been made between the parties, upon a submission, giving mutual

(k) Per Tindal, C. J., in Dalgleish v. Hodgson, 7 Bing. 495, 504; 5 M. & P. 407, S. C.

(1) 20 Howell's St. Trials, 538; see also Bull N. P. 244; Phillips v. Hunter, 2 H. Bla. 402.

(m) Plummer v. Woodburne, 7 D. & R. 25; 4 B. & C. 625, S. C.

(n) Novelli v. Rossi, 2 B. & Ad. 757. (0) See Rol. Ab. Arbitrament (V); Com. Dig. Accord, (A 1); Bac. Ab. Arbitrament (G); Watson, 147; Cald. 223.

(p) This must now be specially pleaded. See Form, 3 Chitty Pl. 5th ed. 927 & 1062.

remedies in case of non-performance,—and in this case the award is made a bar to an action upon the original cause of action, although the defendant has not performed the award. This was decided in the case of Gascoyne v. Edwards (g). The declaration was in covenant upon a lease for not repairing, and the defendant successfully pleaded an award, by which it was directed that the defendant should pay the plaintiff 51.; should put the premises in repair; and leave the same at a certain time.

But where the action is brought for a debt, and the award before made has only decided that it is due, and ascertained its amount; and that the money payable under the award is nothing but the original debt, so ascertained in amount, the plea of arbitrament and award is bad. In Allen v. Milner (r), the action was in indebitatus assumpsit for tolls. The defendant pleaded that differences had arisen between him and the plaintiff, touching the claim; and that they mutually submitted themselves to refer, and did refer, the said matter in difference to arbitration; that they mutually promised to abide by the award; and that the umpire made his award of and concerning the said premises, and did thereby award that the defendant should pay to the plaintiff the sum of 131. To this plea the plaintiff demurred specially, because the plaintiff did not aver payment of the 137., or any other satisfaction of the plaintiff's demand. The question therefore was, whether this award was of itself, without payment or satisfaction, any bar; and the court, considering the nature of the plaintiff's demand, and the nature of the award, were of opinion that it was not. Lord Lyndhurst, C. B., in delivering the judgment of the Court, said, "The plaintiff's demand is for a debt, and the award is not for the performance of any collateral act, but for the payment of money. The matter, therefore, for the consideration of the arbitrator was, whether there were any and what debt; the award only ascertains that there is a debt, specifies the amount, and directs the payment; but the money, till paid, is due in respect of the original debt, i. e., for tolls; its character remains the same; nothing is done to vary its nature, or destroy its original quality. Had the demand been of a different description,

(q) 1 Y. & J. 19, decided on general demurrer; S. C., cited by Lord Lyndhurst, C. B., in Allen v. Milner, 2 C. & J. 53. See Crofts v. Harris,

Carth. 187; Allen v. Harris, 1 Lord
Ray. 122.

(r) 2 C. & J. 47.

as for the delivery of goods, and the award had directed a payment of money in satisfaction of the demand, it might then have been said that the award had changed the nature of the original demand; that the right to have the goods was gone, and the only right remaining was the substituted right, i. e., the right to have the money; or, had the demand been for a debt, and the award had directed, not payment in money, but payment in a collateral way, as by delivery of goods, performance of work, &c., it might perhaps have been said that the right to have payment in money was gone; but here the 137. is to be paid for the original demand, i.e., for the tolls; and it is to be paid as that demand was to have been paid, i. e., in money."

Where all matters in difference are referred, the party, as to every matter included within the scope of such reference, ought to come forward with the whole of his case before the arbitration, if he mean to insist upon it as a matter of difference. He cannot reserve it, and make it the subject matter of a fresh action (s). In Dunn v. Murray (t), the declaration stated that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant, in a certain capacity, for a year, at the rate of five guineas per week, throughout the year, defendant undertook to employ him for a year; and alleged as a breach that the defendant dismissed the plaintiff from his employ before the end of the year, without any reasonable or probable cause. The declaration contained counts for wages, and for work and labour, &c. The cause, which was commenced before the expiration of the year, was referred to an arbitrator, who awarded to the plaintiff a sum of money, equivalent in amount to the wages he would have been entitled to receive from the defendant on the day when the action was commenced. No claim was made before the arbitrator for any compensation in damages for the dismissal; except so far as the special count in the declaration, and the evidence of the employment and the dismissal, might amount to such a claim. The plaintiff having afterwards brought an action to recover a compensation in damages, in consequence of the dismissal from the defendant's employ before the end of the year; it was held that the award of the arbitrator was a bar to such action.

(s) Smith v. Johnson, 15 East, 213. (t) 9 B. & C. 780. 4 Mann. & R. 571.