, Under the decisions of this court in Harrington v. Stratton, 22 Pick. 510, and in subsequent cases confirming the same principles, it was entirely competent for the plaintiff to avail himself of the false representations and fraud of the defendant, now made the foundation of this action, in reduction of damages in the action on the note given for these shares. Perley v. Balch, 23 Pick. 283. Mixer v. Coburn, 11 Met. 561. Westcott v. Nims, 4 Cush. 215. Cook v. Castner, 9 Cush. 277. This course the plaintiff did in fact adopt, and did procure thereby a large reduction from the amount of the note. The further inquiry is whether, having done so, he can now resort to his action to recover further damages for such false representations.

*52It was certainly open to the plaintiff, originally, to have resorted to his action to recover damages for the deceit and false representations alleged in this declaration. It was, before the case of Harrington v. Stratton, above cited, certainly questionable whether that was not the only mode to obtain redress in such a case. Looking at the course of reasoning upon which that case was decided, it will be found to have been to avoid circuity of action, or in other words to prevent compelling the party to resort to a cross action to recover his damages. That was deemed to be imposing an unnecessary hardship upon him, inasmuch as the same facts might, without violating any legal principle, be permitted to be shown on the trial of the action on the note or contract, as impeaching its consideration, in whole or in part. Such being the case, it leaves a right of election, as to the remedy, in the party upon whom the fraud has been practised ; but having made such election, and proceeded to trial, availing himself of such matter in defence, he has waived his right to a cross action therefor. This seems to be entirely reasonable, and is only giving proper effect to the judgment in the former case. Jones v. Scriven, 8 Johns. 353.

This principle of waiver of right to an action is familiarly applied in cases of tortious taking of personal chattels, when the same have been sold and the avails come to the use of the tortfeasor. The party claiming the property has the election either to sue in trover or to institute his action for money had and received, but in case of a resort to one of the remedies, and a failure to recover at all upon the merits of the case, or a recovery of inadequate damages, he is then precluded from resorting to another action, though of a different species, to recover damages for the same injury. The evidence upon which the case of the party is to be sustained is competent in either form of action, and, once offered, the verdict thereon is conclusive.

It was objected at the argument, to this ground of defence, that it was not open to the defendant, not having been set forth in the answer, as a substantive fact intended to be relied upon in avoidance of the action, as is required by St. 1852, c. 312, §18. But this objection to this defence, however it might have *53availed at the trial of the case before the jury, was not then taken, but the question was submitted to the court, and ruled upon, as properly open upon the pleadings. We think the plaintiff should have taken the objection at the trial, thus giving the other party the opportunity of asking leave to amend his answer upon showing reasonable ground therefor. The ground actually taken was that the proceedings in the former trial would not preclude maintaining the present action, and the court so ruled, and to that ruling the defendant filed his exceptions.

Exceptions sustained.