MERGER. The question how far the cause of action is merged in a .judgment some times becomes very material, as affecting the right to sue on the former in another, jurisdiction. "The judgment of a court of competent jurisdiction discharges the obliga tion which the action is brought to enforce. The judgment may operate either to merge the original obligation, in so far as judg ment is rendered for the plaintiff ; or to estop the plaintiff from subsequently set ting up his original claim, in so far as judg ment is rendered for the defendant." Harri Man, Contr. 295.
The effect of the merger of the cause of action is often very serious ; one having a right of action against two or more per sons may, by recovering judgment against one of them, lose his remedy against the others. As where the plaintiff, in an ac tion upon a joint contract obligation elected to enter judgment against one defendant, in default of plea or answer, the judgment was held a bar to a subsequent action against the other, the debt being merged in the judgment; Davison v. Harmon, 65 Minn. 402, 67 N. W. 1015 ; O'Hanlon v. Scott, 89 Hun 44, 35 N. Y. Supp. 31; but the cause of action does not merge in a void judgment; McCadden v. Slauson, 96 Tenn. 586, 36 S. W. 378.
Where the cause of action has arisen in a foreign country, the plaintiff has the op tion to sue on a judgment obtained there, or ignoring the judgment to proceed upon the original cause of action, in both cases subject to certain exceptions, as where the judgment is to enforce a penalty or for a tort on which there is no action here; Ly man v. Brown, 2 Curt. C. C. 559, Fed. Cas. No. 8,627. This choice of remedy does not exist in the case of judgments in sister states ; a cause of action in such case is merged and the remedy is confined to an ac tion on the judgment; Freeman, Judgments § 241 ; Henderson v. Staniford, 105 Mass. 504, 7 Am. Rep. 551; Barnes & Drake v. Gibbs, 31 N. J. L. 317, 86 Am. Dec. 210; Bax ley v. Linah, 16 Pa. 241, 55 Am. Dec. 494; Contra, Beall's Adm'r v. Taylor's Adm'r, 2 Gratt. {Va.) 532, 44 Am. Dec. 398. The rule as stated is subject to the exception that there is no merger of the cause of action in the judgment unless the latter is general.
Where the judgment was in a penal action, the action was held not to abate on the death of a party, because the judgment hav ing been entered, the action thereafter had the attributes of a contract ; Carr v. Rischer, 119. N. Y. 117, 23 N. E. 296.
It has been held that in an action of tort, the tort merges in the judgment, so as to allow an attachment as on the contract; Johnson v. Butler, 2 Ia. 535; although a tort cannot be set up as a counter-claim, the judgment upon it may, as constituting a con tract ; Taylor v. Root, *44 N. Y. 3,%; so it was held that a judgment so far extinguish ed the original debt that a set-off available in the suit on the debt by reason of a claim against an assignor of said debt was no lon ger available after judgment ; Ault v. Zeher ing, 38 Ind. 429.
The doctrine of the merger of the cause of action is not carried to such extreme as to defeat the equities or just rights of the defendant or plaintiff. Thus it has been held with some frequency that it can be shown against a judgment that the same was ob tained upon a debt which was provable against defendant in proceedings in insol vency, and being so provable was barred by the discharge in insolvency, and as the dis charge barred the debt, it barred the judg ment resting on the debt ; Clark v. Bowling, 3 N. Y. 216, 53 Am. Dec. 290.
Where the defendant was sued in Massa chusetts, in debt on a judgment, he pleaded a discharge under the New York insolvency law, and it was held that the court would look behind the judgment and see whether under the facts giving rise to it, it was so discharged; Betts v. Bagley, 12 Pick. (Mass.) 572 ; and, on the other hand, a judgment ap parently discharged by insolvency proceed ings, but found to be based on notes executed before the passage of the insolvent law was held not affected by the latter, and enforce able ; Wyman v. Mitchell, 1 Cow. (N. Y.) 316; so it was held that a judgment does not prevent a creditor from taking an attach ment as a non-resident creditor; Owens v. Bowie, 2 Md. 457.