the defendant upon the entry of judgment for the plaintiff in trover, at present a different doctrine is generally applied, and it is now commonly held that title is not transferred by the entry of judgment, but remains in the plaintiff until he has received actual satisfaction. See Atwater v. Tupper, 45 Conn. 144; Turner v. Brock, 6 Heisk. 50; Lovejoy v. Murray, 3 Wall. 1; Ex parte Drake, 5 Ch. Div 866; Brinsmead v. Harrison, L. R. 7 C. P. 547; 1 Greenl. Ev. § 533, and note. And the law has been commonly so administered by our own trial Courts. We think this doctrine better calculated to do justice, and see no reason why we should not hold it to be law. Whenever the title passes, as there has been no sale or gift and no title by prescription or by possession taken upon abandonment by the true owner, the transfer is made by his inferred election to recognize as an absolute ownership the qualified dominion wrongfully assumed by the defendant. The true owner makes no release in terms and no election in terms to relinquish his title; but the election is inferred by the law, to prevent injustice. Formerly this election was inferred when judgment for the plaintiff was entered, because his damages, measured by the value of the chattel and interest, were then authoritatively assessed, and the judgment brought to his aid the power of the Court to enforce its collection out of the wrongdoer's estate or by taking his person; and this was deemed enough to insure actual satisfaction. If so, it was just to infer that when he accepted these rights he elected to relinquish to the wrongdoer the full ownership of the chattel. An election was not inferred when the suit was commenced, although the plaintiff then alleged that the defendant had converted the chattel, and although the writ might contain a capias; because, owing to the uncertainties attendant upon the pursuit of remedies by action, it was not just to infer such an election while ultimate satisfaction for the wrong was but problematical. Forms of action are a means of administering justice rather than an end in themselves. When it is seen that the practical result of a form of action is a failure of justice, the Courts will make such changes as are necessary to do justice. If the entry of judgment in trover usually gave the judgment creditor but an empty right, it was not just to infer that upon acquiring such a right he relinquished the ownership of the chattel, and the rule that required the inference to be then drawn was properly changed. The ground for inferring such an election was that upon the entry of judgment he acquired an effectual right in lieu of his property, and the doctrine that, without some actual satisfaction, the inference of an election would not be drawn has been shown by experience to be necessary to the administration of justice, and has been generally acted upon, and the modern rule adopted that the plaintiff's title is not transferred by the entry of judgment, but is transferred by actual satisfaction. Trover is but a tentative attempt to obtain justice for a wrong, and, until pursued so far that it has given actual satisfaction, ought not to bar the plaintiff from asserting his title. The

present doctrine is consistent with the general principle stated by Lord Ellenborough in Drake v. Mitchell, 3 East, 251, and quoted in Vanuxem v. Burr, 151 Mass. 386, 389, 24 N. E. 773, as approved in Lord v. Bigelow, 124 Mass. 185, that

"a judgment recovered in any form of action is still but a security for the original cause of action until it be made productive in satisfaction to the party."

But the present plaintiff has done more than to take judgment in trover. In her action of trover she caused the horse to be attached as property of Bryden, and, since obtaining judgment, she has caused the horse to be seized in execution on the judgment as his property, and to be kept and offered for sale on the execution until, as it was about to be so sold, it was replevied by Davenport from the officer in a suit between them which is still pending in Connecticut, That suit is not a bar to this action, because it is not between the same parties. White v. Dolliver, 113 Mass. 400; Newell v. Newton, 10 Pick. 470. But we must still inquire whether, assuming that the plaintiff's property in the horse was not transferred by her judgment in trover, it was transferred by that judgment taken in connection with the facts of the attachment and levy. The case of Ex parte Drake, above cited, is an authority to the point that a plaintiff who has brought an action of detinue, and taken judgment both for detention and the value of the chattel, and has also proved his judgment in bankruptcy after having had the chattel seized on execution as the defendant's property, may nevertheless assert his ownership and have process to restore to him the chattel in specie. In such cases Courts look to substance rather than form, and do not by inferring an election or a waiver deprive of his property a plaintiff who has unfortunately resorted to some futile method of procuring redress. In the present case, Davenport had bought the horse of Bryden before the attachment was made, and therefore the attachment was a denial of his ownership as well as an assertion of her own title by the plaintiff. The natural construction to be put upon her conduct in attaching and beginning a levy upon her own horse as the property of Bryden in a suit asserting her ownership is that, while she contended that in fact the horse was her own, she consented that, if litigation with Davenport as to the true state of title could be avoided by so selling the horse that the proceeds of the sale should be applied upon her claim for damages, she would in that event no longer assert her paramount title. Her implied offer not having been accepted, and Davenport having rendered impossible the accomplishment of her plan to avoid further litigation, she could thereupon say that all which had gone before was provisional upon the completion of the levy, and could enforce her right of property by any proper action against Davenport, or any one who might thereafter take wrongful possession of her horse, unless barred by the rules of estoppel. . . . She is not estopped by it from maintaining the present action.

In the opinion of a majority of the Court, the result must be: Judgment set aside, and judgment for plaintiff ordered.

KNOWLTON, J. (dissenting). I am of opinion that the judgment in this case should be for the defendant. . . . When a plaintiff has elected to take judgment for the full value of property converted, and has then levied the execution upon property of the defendant which is subject to be taken on execution, especially if it is the property converted, he is thereby precluded rfom reversing his election, and taking the converted property under his original title.

The CHIEF JUSTICE concurs in this opinion.

HOLMES, J. (dissenting). As the judges are not unanimous, it becomes necessary for me to state my views, which otherwise I should not do, as they have not persuaded my brethren.

I am of opinion that the plaintiff ought to be barred in this action by her recovery of judgment in trover for the same horse. I am aware that the doctrine that title passes by judgment without satisfaction is not in fashion, but I never have been able to understand any other. It always has seemed to me that one whose property has been converted has an election between two courses, that he may have the thing back, or he may have its value in damages, but that he cannot have both; that when he chooses one he necessarily gives up the other; and that by taking a judgment for the value he does choose one conclusively. He cannot have a right to the value of the thing, effectual of ineffectual, and a right to the thing, at the same time. The defendant is estopped by the judgment to deny the plaintiff's right to the value of the thing. Usually, estoppels by judgment are mutual. It would seem to follow that the plaintiff also is estopped to deny his right to the value of the thing, and therefore is estopped to set up an inconsistent claim. In general, an election is determined by judgment. Butler v. Hildreth, 5 Metc. (Mass.) 49; Bailey v. Hervey, 135 Mass. 172, 174; Vulcanite Co. v. Caduc, 144 Mass. 85, 86, 10 N. E. 483; Raphael v. Reinstein, 154 Mass. 178, 179, 28 N. E. 141. I know of no reason why a judg ment should be less conclusive in this case than in any other. Of course, I am speaking of a judgment for the value of the chattel, not of one giving nominal damages for the taking. The argument from election is adapted in White v. Philbrick, 5 Greenl. 147, 150, which, so far as I know, is still the law of Maine, notwithstanding the remark in Murray v. Lovejoy, 2 Clif. 191, 198, Fed. Cas. No. 9,963. See, also, Shaw, C. J., in Butler v. Hildreth, 5 Metc. (Mass.) 49, 53.

The most conspicuous cases which have taken a different view speak of the hardship of a man's losing his property without being paid for it, and sometimes cite the dictum in Jenk. (4th Cent.) Case 88, "Solutio pretii emptionis loco habetur," which is dogma, not reasoning, or, if reasoning, is based on the false analogy of a sale. But they leave the argument which I have stated unanswered, not, as I think, because the judges deemed it unworthy of answer, or met by paramount con

siderations of policy, but because they did not have either that, or a clue to the early cases, before their mind. Lovejoy v. Murray, 3 Wall. 1, 17; Brinsmead v. Harrison, L. R. 6 C. P. 584, 587, L. R. 7 C. P. 547, 554. It is not the practice of the English judges to overrule the common law because they disapprove it, and to do so without discussion. In Brinsmead v. Harrison, Mr. Justice Willes thought he was proving that the common law always had been in accord with his position. So far as the question of policy goes, it does not seem to me that the possibility it is only the possibility of an election turning out to have been unwise is a sufficient reason for breaking in upon a principle which must be admitted to be sound on the whole, and for overthrowing the doctrine of the common law by a judicial fiat. I am not informed of any statistics which establish that judgments for money usually give the judgment creditor only an empty right.

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That the view which I hold is the view of the common law, I think, may be proved by considering what was the theory on which the remedies of trespass and replevin were given. In Y. B. 19 Hen. VI. 65, pl. 5, Newton says:

"If you had taken my chattels, it is at my choice to sue replevin, which shows that the property is in me, or to sue a writ of trespass, which shows that the property is in the taker; and so it is at my will to waive the property or not." In 6 Hen. VII. 8, pl. 4, Vavisor uses similar language, and adds:

"And so it is of goods taken. One may divest the property out of himself, if he will, by proceedings in trespass, or demand property by replevin or writ of detinue," if he prefers.

There is no doubt that the old law was that replevin affirms property in the plaintiff, and trespass disaffirms it, and that the plaintiff has election. Bro. "Trespass," pl. 134; 18 Vin. Abr. 69e; Anderson and Warberton, JJ., in Bishop v. Montague, Cro. Eliz. 824. The proposistion is made clearer when it is remembered that a tortious possession - at least, if not felonious carried with it a title by wrong, in the case of chattels, as well as in the case of a disseisin of land, as appears from the page of Viner just cited, and as has been shown more fully by the learned researches of Prof. Ames and Prof. Maitland. 3 Harv. Law Rev. 23; see Id. 326; 1 Law Quarterly Rev. 324. I do not regard that as a necessary doctrine, or as the law of Massachusetts; but it was the common law, and it fixed the relations of trespass and replevin to each other. Trespass, and, on the same principle, trover, proceed on the footing of affirming property in the defendant, and of ratifying the act of the defendant which already has affirmed it. I do not see on what other ground a judgment for the value can be justified. If the title still is in doubt, or remains in.the plaintiff, the defendant ought not to be charged for anything but the tortious taking. Again, cannot the plaintiff take the converted chattel on execution? And on what principle can he do so, if it does not yet belong to the defendant?

I say but a word as to the practical difficulties of the prevailing rule. No doubt they can be met in one way or another. Suppose the plaintiff, after judgment, were to retake the chattel by his own act. It would strike me as odd to say that this satisfied the judgment, and as impossible to say that it satisfied the whole judgment, which was for the tort, as well as for the value of the property. Yet, on the view which I oppose, I presume that the judgment could not be collected. See Coombe v. Sansom, 1 Dowl. & R. 201.

It seems to me that the opinion which I hold was the prevailing one in England until Brinsmead v. Harrison, supra. Bishop v. Montague Cro. Eliz. 824; Fenner, J., in Brown v. Wootton, Cro. Jac. 73, 74, Yel. 67, Moore, 762;Ad ams v. Broughton, 2 Strange, 1078, Andrews, 18, 19; Buckland v. Johnson, 15 C. B. 145, 157, 162, 163; Serjeant James Manning's note to Barnett v. Branado, 6 Man. & G. 640. See Lamine v. Dorrell, 2 Ld. Raym. 1216, 1217. And I should add that I see a relic of the ancient and true doctrine in the otherwise unexplained notion that when execution is satisfied the title of the defendant relates back to the date of the conversion. Hepburn v. Sewell, 5 Har. & J. 211; Smith v. Smith, 51 N. H. 571, 50 N. H. 212. Compare Atwater v. Tupper, 45 Conn. 144, 148.

The only authorities binding upon us are the ancient evidences of the common law, as it was before the Revolution, and our own decisions. I have shown what I think was the common law. Our own decisions leave the question open to be decided in accordance with it. Campbell v. Phelps, 1 Pick. 62, 65, 70; Bennett v. Hood, 1 Allen, 47, Many cases in other states are collected in Freem. Judgm. (4th Ed.) § 237. If I am right in my general views, they apply to this case. The plaintiff recovered her judgment in Connecticut, to be sure, as ancillary administrator there; but the horse was there, and she was entitled to it there, so that her judgment recovered there passed the title. Like any other transfer of a chattel, valid in the place where it was made, and where the chattel was situated, it will be respected elsewhere. The Connecticut law was not put in evidence, and therefore we must presume that a judgment there has whatever effect we attribute to it on the principles of the common law.

320. JAMES BARR AMES. "The Disseisin of Chattels." (1890. Harvard Law Review, III, 23. Select Essays in Anglo-American Legal History, No. 67, III, 541.) One who has been wrongfully dispossessed of a chattel has the option of suing the wrong-doer in Replevin, Detinue, Trover, or Trespass. A judgment in Replevin enables him to keep the chattels already replevied and delivered to him by the sheriff, and a judgment in Detinue establishes his right to recover the chattel in specie, or, that being impracticable, its value. A judgment in Trespass or Trover, on the other hand, is for the recovery of the value only, as damages. Inasmuch as a defendant ought not to be twice vexed for a single wrong, a judgment in any one of these forms of action is not only a merger of the right to resort to that one, but is also a bar against the others. Accordingly, a judgment in Trespass of Trover against a sole wrong