It seems to this court to be impossible to sustain the judgment, which was rendered in this cause in the court below, upon any principle of law or rule of pleading.
So long ago as the time of Lord Coke, in Higgans’ Case, 6 Rep., 45, it was resolved, that whenever a judgment was recovered upon a bond, and the same remained in force, then the obligee in the bond could not have a new action upon it— the principle of the decision being, as expressed in the maxim transit in rem juclieatum, that the cause of action is thereby changed into a matter of record of a higher nature, and the inferior remedy is merged therein.
In Brooms Commentaries, 269, this doctrine of merger is thus explained: “So, if judgment be recovered for a debt due by bond, the debt thus becomes, by judicial proceeding and act in law, transformed into a matter of record, upon which latter security, whilst it coutinues in force, the plaintiff’s remedy must be had”; and in King v. House, 13 M. and W., 494, it was held that the pendency of such a judgment was pleadable, not in abatement merely, but as an absolute bar to another action brought upon the same bond.
The same rule obtains in the courts of this country:
In Wagner v. Cochrane, 35 Ill., 152, it is said that by judgment, the contract upon which it is based becomes entirely merged — loses all its vitality — and ceases to be obligatory upon the parties. Its force and effect are wholly expended, and all remaining liability is transferred to the judgment, which then becomes the evidence, and the only evidence that can be used in a court., of the existence of the original debt.
In Platt v. Potts, 11 Ired., 266, this court declared that a note upon which judgment had been taken, was defunct — that it no longer had any existence as a thing, either in fact or in contemplation of law; and in Gibson v. Smith, 63 N. C., 103, it is said, that there is no exception to the rule that a judgment merges the debt upon which it is rendered.
So inflexibly is the doctrine enforced by the courts, that the *100supreme court of Pennsylvania declared, in Jones v. Johnston, 3 Watts and Sergeant, 276, that no expression of intention by the parties would control the law, which prohibits distinct securities of different degrees for the same debt, and no agreement on their part would prevent an obligation from merging in a judgment on it, or passing in rem judicaium; and in United States v. Price, 9 How., 83, a court of equity even, which pays no regard to mere fictions, refused to take cognizance of a bill seeking to enforce a bond upon which a judgment at law had been previously rendered, holding that it was merged in and extinguished by the higher security.
This being so, and the bond declared on being thus absolutely extinguished by the judgments, so that it no longer furnished evidence of any indebtedness on the part of the defendant to the plaintiff, and the court having expressly withheld its leave to declare upon the judgments, there was literally left nothing in the cause, which could authorize the judgment rendered, or in fact any judgment other than that demanded by the defendant.
It is true, indeed, that counsel, when pressed with this difficulty, assumed the ground that by pleading the judgments in the manner she did, and by admitting them to be yet unsatisfied, the defendant had supplied whatever deficiency there might otherwise have existed in the complaint, and that the plaintiff might with propriety rely upon the strength of such admissions to prove his case, and support the judgment of the court: and for this he cited several authorities. A reference to them, however, fails to justify any such inference as is attempted to be drawn from them. On the contrary, the general rule, whether under the new or the old procedure, is, that relief must be given according to the allegations contained in the pleadings and the proofs offered in support of them; and that the latter must not only show that the plaintiff is entitled to, some relief, but that he is entitled to it upon the ground on which he has placed his claim. Craige v. Craige, 6 Ired. Eq., 191; Herron v. Cun *101 ningham, 1 Ired. Eq., 376; Shelton v. Davis, 69 N. C., 324; Pomeroy on Remedies, 549.
In Rand v. Bank, 77 N. C., 152, the very point was made, and it was held by the court that a plaintiff could not be allowed to abandon the averments of his complaint, and recover upon a collateral statement of facts set out in the answer.
Any other rule than the one adopted by the courts, would tend to defeat the very aim and object of-all pleadings, and would be so productive óf confusion, and of possible injustice, that it were better to dispense with all attempts at formal pleading, and depend only upon oral statements made at the moment of trial. What more striking illustration could there be of the surprise and danger, which might attend a rule of practice, such as is invoked by the plaintiff, than is afforded by the very case we have in hand. A defendant, sued in an action of debt upon a bond, answers that the bond has been merged in a judgment and is therefore, extinguished. For a complete defence to the action as urged against Burgwyn, nothing more is needed, and anything more on her part would be considered as redundancy. To give judgment against her upon the strength of that statement alone, would manifestly be to deprive her of the opportunity of defending herself against the pleaded judgment as creating a subsisting liability. Very true, at the trial, she admitted that it had never been paid, but whether there are other valid defences against it, she has never had the opportunity to make known, and it is impossible for the court to anticipate.
Liberal as the Code is of amendments, and careful as it is to avoid the decision of causes upon points not involving their merits, it has provided no cure for omissions such as the plaintiff has been guilty of, and neither could it do so without subjecting the defendant to such danger from surprise as would be altogether unjustifiable.
The case is one in which the cause of action as proved is wholly variant with that alleged in the complaint, and falls *102clearly .under section 130 of C. C. P., which makes no provision for amendments in such cases. How far it is the purpose of the legislature to restrict the discretion of the judge in disallowing amendments, in cases of immaterial or partial variances between the proofs and the pleadings, as provided for in sections 128, 129 and 132 of the Code, we are not now prepared to say. But we are sure, that, in a case like the present, in which the plaintiff, in the expectation of benefit to himself, has purposely withdrawn certain of his alleged causes of action, it must rest within the discretion of the court to say, whether or not he shall be permitted to reinstate them in his complaint.
It cannot be that the pleadings in a cause can be kept thus shifting, first presenting one cause of action, and then another, at the will of the party, and free from all control on the part of the court.
If clothed with a discretion in the matter, His Honor has already exercised it by refusing the plaintiff's motion, and it is needless therefore, even conceding it to be a case in which the Jaw would tolerate such an amendment, to remand the cause, as was done in Shelton v. Davis, supra, and Pierce v. Mason, 78 N. C., 37, to the end that the question may be considered; and nothing can be done, save to reverse the judgment of the court below and to give judgment here for the defendant, S. E. Burgwyn, that she “go without.day,” and that the attachment be dissolved.
The plaintiff will pay the costs of both appeals.
Error. Judgment according.