Sanderson v. Caldwell, 2 Aik. 195

Sanderson v. Caldwell

2 Aik. 195 | Vt. | 1826

PREntiss, J.

delivered the opinion of the Court.

The question presented is, whether a judgment in an action of.trover or trespass, without satisfaction, is a bar to another action against a different person, for the same tort.

It is a general principle of law, that where Ahere are collateral concurrent remedies for the same cause of action, a recov-ry against one person, without satisfaction, is no bar to an action against another. It is admitted, in relation to joint and several contracts, that there may be separate suits, and a recovery had against e'ach obligor or promisor, and nothing but a satisfaction will be a bar; and it is not easy to see why the same principle should not prevail in torts. But it seems that in Brown vs. Woolton, Cro. Jac. 73, Yelv. 67, it was determined, that a mere recovery of judgment, in an action of trover against one, might be pleaded in bar to a second action against another person for the same cause, without averring satisfaction. This appears to be the only adjudged case in which such a doctrine is held, and all the elementary writers, who lay down a similar position, refer to this case. It is however said in 1 Chit. PI. 76, on the authority of a nisiprius case of Boyce vs. Bayliffe, 1 Campb. Cas. 60, and a gratuitous saying of Lawrence J. in Warden vs. Bayley, 4 Taunt. 87, that where separate actions are commenced against several defendants for the same act of trespass, the pendency of the first may be pleaded in abatement of the second ; and this would seem to be the necessary consequence of the doctrine in Brown vs. Woolton. But this- is opposed to the principle which runs through all the authorities, that a separate trespass attaches to each of the parties individually, and the plaintiff may sue all or any of them, or bring separate suits against each. (Hay-don’s case, 11 Co. 5.—Mitchell vs. Tarbott, 5 T. Rep. 649.—Sulton vs. Clark, 6 Taunt. 29.—Baker vs. Lavett, 6 Mass. 78.— Thomas vs. Rumsey, 6 Johns. Rep. 30.) If all the trespassers are answerable individually, and separate actions may be had against each, it must follow that a recovery against one is not of itself a bar to a recovery against another; for it would be idle to hold - that separate actions may be brought, unless they may be prosecuted to judgment. It is laid down in Brookes Mr. Judgment, pi. 98, that if two commit a trespass, several actions may be brought against them, and a recovery had against each; and' one defendant cannot plead that the plaintiff hath recovered against the other for the same trespass, and taken him in execution. The decision in Moreion’s case, Cro. Eliz. 30, was, that execution and satisfaction by one discharged the other. Clench said, if one command three to do a trespass, and they do it, and a recovery is had against him, and he, being in execution, doth satisfy the plaintiff, this is a good discharge of the other. In Cooke vs. Jenner, Hob. 66, the doctrine is, that trespass may be sued in several actions, but the plaintiff can take but one satisfaction. And it is laid down by Sergeant Williams in his notes, 2 Saund. 148, b. and appears to have been decided in Corbett vs. *202Barnes, Sir W. Jones, 377, that the plaintiff has a right to bring several actions ior the same trespass, and recover in them ali, yet when satisfaction is Jhad against one, the plaintiff cannot jjave another satisfaction, any more than where separate actions are brought uyg^jjfejoint and several bond. In Bird vs. Randall, 3 Burr. 1345, Lof$mIansjield said, jn cases of joint trespasses and joint contracts, the defendant^ are all of them liable to the plaintiff, and he may proceed against any or all of them if he pleases; as it is but one trespass, one contract, all are liable; yet he shall have but one satisfaction. .And in Drake vs. Mitchell, 3 East, 258, it was laid down by Lord Ellenborough, 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; and therefore, till then, it cannot operate to change any other collateral concurrent remedy which the party may have. The case of Brown vs. Wootton, therefore, appears to be supported neither by the prior or subsequent English cases; and in this country' its authority has not only been questioned, but expressly denied. In Livingston vs. Bishop, 1 Johns. Rep. 290, it was held, that separate actions might be brought against several joint trespassers, and that a recovery against one was not alone a bar to a recovery against another. In Campbell vs. Phelps, 18 Mass. 62, Parker, Ch. J. admitted, that according to the modern decisions, nothing short of satisfaction of a judgment against one trespasser for any tortious act, will bar an action against his fellows; though he seemed to think there might be a distinction between cases of trover or trespass for goods, and trespass for a personal wrong or injury done to property. But Wilde, J. denied there was any such distinction, and held that a recovery against «peperson, without satisfaction, is no bar to an action against another for the same cause, and that there was no difference in this respect between joint contracts and joint torts. And in the case of Sheldon vs. Kibbe, 3 Con. Rep. 214, this doctrine was fully recognized and adopted.

The argument, that in actions ex delicto, the demand for damages is uncertain, and when reduced in remjudicatam and to certainty, the original cause of action is gone, and the action taken away as to all others, applies equally to actions ex contractu. In assumpsit, the damages are uncertain, and yet when reduced to certainty by judgment against one of two joint and several prom-isors, -it has never been held, that the judgment is a bar to an action against the other.

It is said, however, that in contracts, the promise is the distinct, several promise of each, and each is chargeable and liable for the entire demand, and therefore it is, that the cause of action against one is not merged in the judgment against the other. So, in trespass, the trespass is the individual act of each of the parties, andeaph.is alike answerable for the entire damages. But the principle bf transit in rem judicatam is confined to the party to the judgment, and is true only of the particular cause of action in suit against him ; and so it seems to have been lim*203ited in its application by Lord Ellenborough in Drake vs. Mitchell. The party to the judgment cannot, and ought not to be vexed, by another suit on the original cause of action; but there is no reason why another person, who is liable for the same cause of action, should not be sued upon it. The further argument relied upon, that the mere recovery of judgment in trover or trespass for goods, vests the property of the goods in the defendant, is equally unfounded. The principle is, solutio pretii emptionis loco habeter, and the property is not changed without payment or satisfaction; and so it was held in Curtis vs. Groat, 6 Johns. Rep. 168, and by Wilde, J. in Campbell vs. Phelps. There is, then, no reason for a distinction between the case of a joint and several liability ex contractu, as to the effect of a recovery against one of the parties, and the case where two or more are liable ex delicto. If two joint and several contractors purchase property, a judgment against one for the price agreed will not be a bar to an action against the other; and it would be strange, if the same persons had taken the property wrongfully, that the law should be different, and the remedy against them less ample. The plaintiff may not always know at the time, all the parties to the trespass, and it cannot be reasonable or just that a mere recovery of judgment against one who is unable to make satisfaction for an injury, perhaps of the most aggravated nature, should deprive him of his remedy against another, who may af-terwards be detected as a party, and may be able to respond the damages. The sound and rational principle is, that the plaintiff may proceed separately against each of the parties, and that a recovery against one, without satisfaction, is no bar to a recovery against another. It must be upon this principle, that a co-trespasser not sued is an admissible witness against the defendant in an action for the trespass; and it seems that his competency was put upon this ground in Lutterell vs. Reynell, 1 Mod. 282. If a mere recovery of judgment against the defendant might be pleaded in bar to an action against himself, he must certainly be incompetent. From the principle we have adopted, it results, that the suing out of execution on the judgment recovered, is altogether immaterial. The principle of electing de me-lioribus damnis, and taking only one execution, as laid down in Haydon’s case, applies, according to that case, only where different juries give a verdict for different damages against several defendants at one time. In Sheldon vs. Kibbe, execution had been sued out on the judgment recovered, and it was held to make no difference. Such also was the case in Campbell vs. Phelps, and the circumstance was considered immaterial. The judgment which was offered in evidence in the present case, therefore, being in no part satisfied, was properly rejected, and there must consequently be judgment for the plaintiff on the verdict.

Judgment for the plaintiff.