27 F. 396
U.S. Circuit Court for the Dis...
1886
Nelson, J.

The defendants in this equity suit claim the right to make their election de melioribus damnis in the separate suits brought to recover damages for the tort. The doctrine is well established that when separate actions are brought for a joint trespass the plaintiff can recover against one or all, though others be acquitted; and if separate judgments are obtained, he may make his election to take the larger judgment or pursue the solvent party, and when made, he is concluded. This is a privilege of which he cannot be deprived. He can only have one satisfaction, hut the judgment satisfied must be the one which he has elected to take. The doctrine is fully reviewed in Lovejoy v. Murry, 3 Wall. 2, and it is there stated: “No matter how many judgments may be obtained for the same trespass, or what the varying amounts, an acceptance of satisfaction of any one of them by the plaintiff is the satisfaction of all the others, except the costs.” The answer in this suit denies any acceptance of satisfaction, and the complaint does not even allege that the plaintiff in the state court received the money deposited therein.

The rule stated in Blann v. Cocheron, 20 Ala. 320, cited by United States supreme court, is substantially this: The clerk has no power by his acts to bind the plaintiff unless he assents, and the payment into court of the amount of one judgment does not conclude him, and cut off the privilege of election; the plaintiff must act.

Exceptions overruled.