3 Conn. 214 | Conn. | 1819
Lead Opinion
This case presents two questions for the determination of the court. 1. Whether an unsatisfied judgment, rendered against a joint trespasser, separately, is a bar to a suit against his co-trespasser. 2. If it is not, whether taking out execution and levying it on the body, has that effect.
It is universally admitted, that for a joint trespass, the person injured may sue all the trespassers jointly, or each of them separately ; and that each is responsible for the act of all. There exists no question, that actions may be depending against each trespasser,' severally, at the same time, for the t trespass committed by them jointly ; and that the pendency of one is not pleadable in abatement of the other.
Until the case of Brown v. Wootton, Cro. Jac. 73. the law seems to have been well settled, and required satisfaction as a bar in trespass. In Brooke’s Abr. tit. Judgment, pl. 98. it is asserted, if two commit a trespass, that the injured party may sue them separately ; and one defendant cannot plead, that the plaintiff has obtained judgment against the other for the same trespass, and taken him in execution. In Morton’s case, Cro. Eliz. 30. it was determined, that a judgment and execution against one joint trespasser, which had been satisfied, was a bar to a suit against a co-trespasser; although this was questioned by one of the judges. In the same year, and in the same court, the case of Lendall and Pinfold, 1 Leon. 19. was decided. The plaintiff brought an action of trespass, “ and had judgment and execution accordingly.” Afterwards, he instituted a suit on the sanie trespass against a co-trespasser ; and the judgment and execution were considered a good bar. This case, unless by the phrase “ had execution,” is meant, that the plaintiff had the effect of execution, is not re-concileable with the determination in Morton’s case, nor with Hitchcock and Thurland’s case, 3 Leon. 122. decided in the same Court, the succeeding' year, and published by the same report
Add to this, that the facts in the two cases reported by Leonard, are expressed in terms very similar ; and that the decision in the former of them was founded on the doctrine in Littleton concerning releases. Sect. 376. The reason of Littleton’s text, that a release to one trespasser shall be a bar for others, is, because the release acknowledges the plaintiff to be satisfied for the wrong; et única tantwn erit satisfactio. Claxton v. Swift, 2 Show. 494. by Shower, arguendo.
The case of Brown v. Wootton, Cro. Lac. 73. introduced a new principle, and decided, that a judgment and execution, in behalf of a person concerned in the same trespass, were a a bar. The ground of the determination was this, “ that the cause of action being against diverse, for which damages uncertain are recoverable, and the plaintiff having judgment against one person for damages certain, that which was uncertain before is rendered in rem judicatam, and to certainty ; which takes away the action against the others.” The validity of the principle I very much question, and shall hereafter discuss. “ It was never pretended,” said Shower, in Claxton v. Swift, 2 Show. 494. “ until the case of Brown v. Wootton, that a bare judgment should be a bar.” Some decisions since the case just mentioned have followed it as a precedent, and
The principle that each trespasser should be answerable until satisfaction made, has often been recognized. In Bird v. Randall, 3 Burr. Rep. 1345., Lord Mansfield, speaking of joint trespassers, remarks, that the plaintiff may proceed against all or any of them, “ yet he shall have but one satisfaction for the same injury.” And in Baker v. Lovett, 6 Mass. Rep. 80. Ch. J. Parsons lays down the following principle. “ Where one trespass has-been committed, by several persons jointly, the party injured may sue any or all the trespassers, but he can recover but one satisfaction for the same injury.” > I am well convinced, although the cases are contradictory and ir-reeoncileable, that the weight and number of those which require something more than a judgment as a bar in behalf of a co-trespasser, do very much preponderate.
On principle, independent of cases, I am perfectly clear, that an unsatisfied judgment, pleaded by a separate trespasser, is no bar. The justice of the plaintiff’s demand in such case cannot be denied. In Sheehy v. Mandeville, 6 Cranch, 253. it was said, by Ch. J. Marshall, and with the same force and propriety may be repeated in this case, “ In point of real justice, there can be no reason why an unsatisfied judgment against Jameson” (a joint debtor) “should bar a claim on Mandeville,” who was indebted with him, and was severally sued.
In one sense, every contract, as well as every joint trespass, is joint and several; because each promissor is liable for the whole, and may be compelled to make satisfaction. Rice v. Shute, 5 Burr. 2613. Tooker v. Bennett, 3 Caines 5. This expression is universally true, as to the essence of the debt or demand, in both the cases alluded to. Every trespass, however, is joint and several in a different sense, that is, in referr ence to the mode of redress; arid a suit may be instituted against all the trespassers, or either of them, at the election of
It has been said, that a judgment against one merges and extinguishes the cause of action against all the trespassers. As against the person subjected to the judgment, this is readily admitted. No person shall be twice vexed for one and the same cause ; and it would be insufferably unjust to sanction a suit against him who is already bound by a higher security. But with respect to the collateral effect of the judgment, it has been misconceived. . “ I have always understood,” said Lord Ellenborough, in Drake v. Mitchell, 3 East, 258. “ the principle of transit in rem judicatam, to relate only to thé particular cause of action in which the judgment is recovered, operating as a change of remedy from its being of a higher nature than before. But 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.réjmedy, which the party may have.1” Of this description is the remedy, which the law allows against one of several joint trespassers, who have not been sued. The reason assigned, in Brown v. Wootton, as the foundation of the judgment, seems incompatible with the principle laid down by
If judgment had been rendered against the plaintiff, on the merits, in his suit with Orrin Kibbe, for the above trespass, perhaps it would be a bar to the present action. Ferrers v. Arden, Cro. Eliz. 668. But between that case and the present, there is no analogy.
It is an established principle, that a judgment obtained against one of the contractors, on a joint and several contract, is no bar to a suit against another of them, unless it has been satisfied. Sheehy v. Mandeville, 6 Cranch, 253. Ward v. Johnson & al. 13 Mass. Rep. 148. Higgens's case, 6 Coke 46.
The same person cannot again be sued on the contract; for nemo debet bis vexari; but the judgment does not extinguish the cause of action, and has no effect on the collateral remedy against the other contractors. That a judgment against one of several joint trespassers is precisely parallel, strikes me with a force I cannot resist. In both cases, the suit is founded on an entire indivisible cause of action ; that is, on a contract and tort incapable of separation or division ; and in both instances, the remedy is joint and several. In the one case, the legal operation is founded on the act of trespass merely, an act of the body; and in the other, upon the contract of the ¡parties, which is an act of the mind. The steps preceding the result are different, but the result, the jointness and severalty of the remedy, is the same in both instances. The unity and indivisibility of the cause of action, in both eases, is perfectly alike. If a tresspass is committed by A. and B. on the body of another, the acts are'distinct; the stroke of A. in fact, not being the stroke of B. / and vice verm. But, by operation of law, these distinct acts are amalgamated, and, ⅛ all their parts, become the united act of both. So, a contract made <by A.
The supposed inconvenience probably resulting from there being several judgments in distinct actions, is imaginary. It will be no greater than has the sanction of established principle, in the case of joint and several contracts ; and the satisfaction of one judgment will b&followed by the same relief against all.
If the judgment is not a bar, and I am of that opinion, the néxt enquiry is, whether the taking out execution and levying it on the body, has that effect. In Livingston v. Bishop, it was intimated, that this might be deemed an election by the plaintiff de melioribus damnis ; agreeably to the rule laid down in Sir John Heyden’s case, 11 Coke, 5. But the bearing of the case on this question, I cannot discern. That was a joint action against three trespassers, one of whom was first tried, and had a verdict against him of 200 pounds damages; another of them was next tried, and a verdict was given against him of 50 pounds damages; and the third confessed the action, and a writ of enquiry was awarded, but never issued. The court adjudged, that the plaintiff might elect the better damages against all, but fiat nisi única executio. It amounts to this ; that in one action on a joint tresspass, there shall be one judgment only. The election, there spoken of, was before judgment, not after, by praying out execution ; and the effect of Hey don’s case on a collateral action, with great deference, I think, has been misconceived. The principle I have assumed is, that a judgment against a trespasser must be satisfied, or it will not bar a suit brought against an associate in the trespass. The taking out execution is not satisfaction ; nor is the levying it on the body. As it was said in Blumfield’s case, 5 Coke, 87. “ the execution of the body is no satisfaction, but a gage for the debt, and therefore, after the death, he shall resort to a new execution.55 To the same effect it was observed, by Lord
On the whole, I am of opinion, that the unsatisfied judgment against Orrin Kibbe, on which execution was taken out and levied on his body, is no bar to the plaintiff’s action; and that he is entitled to judgment.
Concurrence Opinion
The question, in this case, is, whether a recovery against one joint trespasser, who has been committed to gaol, on an execution granted thereon, and has taken the poor prisoner’s oath, can be pleaded in bar, to another suit, against his co-trespasser. The principle to be settled, in this case, is, in my view of it, of the first importance. Litigation is one of those evils, which necessarily attend a civilized community ; but the adoption of any principle, (without necessity) which is calculated to increase it, must always be impolitic, always wrong. “ Interest Reipublica ut finis sit litium." Hence the doctrine of consolidation of causes. Hence the legislatures of the different states have made laws, to diminish the number of law suits ; and one has gone so far as to provide, that a suit brought, will bar any claim, which might have been included in such suit, whether it is or not.
It will be granted me, at the onset, that the principle adopted by my Brethren, in this case, is not necessary to the attainment of justice, in any supposed case ; since it is in the pciwer of the plaintiff, in any action founded on tort, to include every person liable, in a single action, or as many of them as he, pleases.
To allow him to sue each separately, is to give him no advantage, unless it be advantageous to him, to have the power of indulging his corrupt passions, in vexing and harrassing those who are in his power; a disposition to do which is too often seen in our courts of justice. Were the principle adopted by the court applicable to actions of trespass only, it would be more tolerable ; but when it is seen, that the principle is equally applicable to ejectment, trover, malicious prosecution,
But it is said, this is the common law of England. I fearlessly deny it; and were it so, I would not adopt it, highly as I think of their common law.
Let us see whether any of the cases, relied on by the plaintiff, even conduce tó prove, that where a judgment has been recovered against one joint trespasser, and execution has been taken out, and levied on his body, a trial has ever been had against his co-trespasser.
The first case relied upon is Sir John Heydon's case, 11 Co. 5. “ In trespass against several, one appeared and pleaded not guilty, with a simul cum, and then another appeared and pleaded. The issues were separately tried, and different damages assessed. The court said, that the plaintiff had his election of the different damages, but that there should be but one execution.’>
This case, so far from supporting the principles contended for, is directly opposed to them. Had the court decided, that two executions might issue, one for the damages and costs of
In the case of Brown v. Wootton, Cro. Jac. 73. the very point now before the court was made, and unanimously decided in favour of the defendant. That was an action of trover. The defendant pleaded a former recovery against one J. S. for the same goods ; and the plea was holden good. The arguments, which are urged here, were urged there. It was said, a judgment, without satisfaction, was no bar: that there was no difference between actions founded on torts, and joint and several contracts. The court, however, say, “ The cause of action being against diverse, for which damages uncertain are recoverable, the plaintiff havingjudgment against one person for damages certain, that which was uncertain before, is rendered in rem judicatam.” I am not aware, that this'ease was ever questioned in Westminsier-Hall.
The same doctrine is supported by a great variety of cases. Rawlinson v. Oriett & al. Carth. 96. Sir Humphrey Ferrers & al. v. Arden, Cro. Eliz. 668. Lendall and Pinfold’s case, 1 Leon. 19. Lacon v. Barnard, Cro. Car. 35. Indeed, no ease can be found in the English books, where there has been a judgment and execution against one tort-feasor, which could i not be pleaded, without satisfaction, to a suit against another.; The argument on the part of the defendant, turns wholly upon i the supposed analogy between actions on joint and several contracts, and those on torts ; and since this is the foundation of the argument, it may not be improper to examine into the extent of this analogy.
A., B. and C. give a joint and several note. An action wiftl lie against each separately;—and judgment and execution j
The judgment merges the promise only, onwhich.it is had, and not concurrent, distinct promises.
A., B. and C. jointly commit a trespass. One, two or all, are liable to be sued, but there can be but one judgment; or, if we carry the principle as far as it is carried in the case of Livingston v. Bishop, 1 Johns. Rep. 290. there certainly can be but one execution.
There is, indeed, but one cause of action; and that there can be but one action, where the cause of action is single, is universally true, whether one or rnany are liable ; because a judgment against one as effectually merges that cause of action, as if it were against all. A recovery against a joint promiser (and one may be had, where no plea in abatement is interposed) will bar all future actions ; because, though many might have been liable, there was but one cause of action. If the analogy between actions founded on torts, and those on joint and several contracts, were complete, why might not two be sued on a joint and several note given by three ? Two joint trespassers may be sued, where three are liable.
I admit the case of Livingston v. Bishop is opposed to the general doctrine I contend for, in this case; and from the high respectability of the court, before which the decision was had, is deserving of great weight; but it is equally opposed to the opinion, my brethren have given in this case ;—and though it does not support me throughout, on the grounds I go, when I say the plea in bar is sufficient, yet the principle adopted by the court in that case, will evince that it is so. Six actions of trespass were brought against as many joint trespassers.— Judgment was recovered against one, execution taken out, paid, and satisfied; and the only question submitted to the court, was, (as all the actions were pending together) whether the plaintiff was entitled to costs, on the other five actions.—It was decided that he was.—The learned judge, who gave the
It ought to be observed, that the court, in the discussion of this case, did not call in question the before cited case of Sir John Heydon; but they did that of Brown v. Wootton; though I believe, it was the first time the correctness of it was ever doubted.
The principle decided in both is precisely the same.—One was an action against two joint trespassers, and the judgment of the court was, that the plaintiff, (as there were two verdicts) might elect between them, and have one execution.— The other was a second action against a joint trespasser, and the judgment of the court was, that the plaintiff had made his election, by taking out an execution, for the same cause of action, against a co-trespasser. What other difference there was between them than that in one case two were sued jointly, and the other separately, I am unable to see.—It must be admitted, that neither of the two last cited cases conduce, in the smallest degree, to support the decision, in the present case ; and as little does the case of Livingston v. Bishop. The court had no intention to carry the principle beyond that decided in Sir John Heydon's case. Indeed, they rely on that case, in support of their decision.
Suppose, then, that the present defendant had been sued in the first action jointly with his co-trespassers ; that they had severed in their pleas; and the jury had awarded different damages; could the plaintiff have had two executions ?— Could he, after having made his election, and failed, by reason of the inability of the defendant to pay the execution, have another execution against the other defendant? Could he make a second election ?—Do the court, in that case, insinuate, that the plaintiff can have a single advantage, by suing them separately, which he could not have, had he sued them jointly ?
I think, therefore, the decision ia this case is opposed both to principle and precedent.
Judgment to be rendered for the plaintiff.
