8 Watts 355 | Pa. | 1839
The opinion of the Court was delivered by
The gravumen of the action is the enticing away the plaintiff’s wife. There was no direct and positive proof of any combination between the defendants for the purpose, but the jury was asked to infer their participation in her abduction, from their acts, declarations and conduct before, at the time, and after her departure from the dwelling of her husband. To disprove the allegation in the declaration, that the wife deserted her husband by the advice and at the procurement and solicitation of the defendants, they offered to prove by her attending physician, that about ten days before Mrs Bale left her husband,she complained that he had treated her badly; that she showed marks on her arms which she said she had received from bis beating her; and asked him what she should do. That he advised her to go to her father’s and leave her husband. This evidence was offered in connection with proof that Bale treated her kindly as long as he thought he could, by that means, prevail upon her to deliver up a certain bond for 1000 dollars, which the defendant Gilchrist had given to her.
The defendants also complain of the rejection of the record of the action of trespass, vi et armis, for criminal connection with the plaintiff’s wife.
This is an action on the case, and a difference is taken between such actions and actions in tort, which are stricti juris. A former recovery, release or satisfaction cannot be given in evidence in an action for tort, on the general issue, but must be pleaded; but an action on the case is founded on the mere justice and conscience of the plaintiff’s case, and is in the nature of a bill in equity, and therefore a former recovery, release or satisfaction need not be pleaded, but may be given in evidence under the general issue. For whatever will, in equity and conscience, according to the circumstances of the case, bar the plaintiff’s recovery, may, in this action, be given in evidence by the defendant: because the plaintiff must recover upon the justice and conscience of his case, and upon that only. Bird v. Randall, 3 Burr. 1353; 1 Wils 45; Thillhaffer v. Herr, 17 Serg. & Rawle 319. There is, therefore, no reasonable doubt, on authority, that the evidence was admissible on the pleading, if in other respects unexceptionable. The actions were brought on the same day, covered the same space of time, and the question is, whether they are not, in substance, for the same injury. A former recovery is no bar, unless it be for the same injury, but where the plaintiff has received a full satisfaction, for the same cause, he cannot recover a second time. And this does not depend on the form of the suit; for the inquiry in every case is, whether the former recovery or satisfaction was for the same thing, or whether the grounds of controversy in the two actions are the same. Thus, when a person takes the personal property of another, and sells it, the owner may elect either of four remedies, trespass, replevin, trover, or an action on the case, for money had and received, but a
For what injury did the plaintiff recover, in the action of trespass? or, what is the same thing, as was ruled in Hess v. Heeble, 6 Serg. & Rawle, what might he have recovered? In the first action the plaintiff’ does not declare for the criminal conversation alone, but he also demands damages for depriving him of the comfort and society of his wife, during the whole time laid in the present action. He elects to consider the whole as one offence, and it can not be questioned that he did or might have recovered, in the first suit, for all the injury he received from the defendant, including not only the criminal intercourse with her, but also compensation for her desertion at the solicitation of the defendant, and thereby depriving him, in the language of the declaration, of her aid, comfort and assistance. Gavin v. Dawson, 13 Serg. & Rawle 246, was decided on this principle. Gavin brought two suits against Dawson—one on the act of the 21st of March 1772, to recover double the value of his goods wrongfully distrained by the defendant, and the other, an action on the case at common law, for the same cause, and alleging his complaint in the same words. The defendant arbitrated both, and report was made in both, that the plaintiff had no cause of action. The plaintiff appealed from the decision in the case to recover double damages on the statute, but did not appeal from the action at common law, where judgment remained in full force. The court held that the plaintiff was barred, and a plea puis darrein continuance was held good. In the case at bar, for the same thing, the plaintiff will recover a double satisfaction for the same injury, and the defendant will be punished twice for the same offence. There was error in rejecting the record of the former recovery.
But it is said the declaration is bad, because no request by the plaintiff to the defendant, to deliver up the wife, and refusal by the defendant, are laid. This objection is made on the authority of a dictum of Chief Justice Wilmot, in Winsmore v. Greenland, 1 Wittes 582. But the remark is made in reference to the third count of the declaration, but does not touch the count for enticing her away. “ It is not necessary,” says the Chief Justice, “ to determine, in this case, whether a request and refusal are necessary,
In other respects we perceive no error in the record.
Judgment reversed, and a venire de novo awarded.