JOINT WRONG-DOERS.

LOVEJOY V. MURRAY.

(3 Wall. 1.-1865.)

Mr. Hutchins for plaintiffs in error.

Mr. Ball contra.

fundustant Case

MR. JUSTICE MILLER delivered the opinion of the court:

The record before us raises three questions, all of which depend upon the principles of the common law exclusively for their solution.

We will consider them in the order in which they naturally arose on the trial, and in which also they have been argued. 1. Did the defendants, in giving a bond of indemnity to the sheriff, thereby become liable as joint trespassers with him in the proceedings under the attachment?

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The first question must, therefore, be answered in the affirmative.

2. Did the plaintiff, by suing Hayden, the sheriff, alone, recovering judgment for about $6000, and receiving from him. $830 on the said judgment, thereby preclude himself from maintaining this suit against these defendants for the same trespass? Is the judgment, or the judgment and part payment, in that case a bar to this action?

Parke, Baron, in the case of King v. Hoare, 13 M. & W. 502, speaking in reference to the same proposition in its application to actions on joint contracts, says, in 1846, that it is remarkable that the question should never have been decided in England. It is equally remarkable that the proposition here presented should be an open question at this day.

The faithful and exhausting research of counsel, in this case, shows that there are conflicting authorities, not only on the main proposition, but on several incidental and collateral points closely connected with it. Two propositions, however, seem to be conceded by all the authorities, which bear with more

or less force upon the main question, and which may as well be stated here.

1. That persons engaged in committing the same trespass are joint and several trespassers, and not joint trespassers exclusively. Like persons liable on a joint and several contract, they may all be sued in one action; or one may be sued alone, and cannot plead the nonjoinder of the others, in abatement; and so far is the doctrine of several liability carried, that the defendants, where more than one are sued in the same action, may sever in their pleas, and the jury may find several verdicts, and on several verdicts of guilty may assess different sums as damages.

2. That no matter how many judgments may be obtained for the same trespass, or what the varying amounts of those judgments, the acceptance of satisfaction of any one of them by the plaintiff is a satisfaction of all the others, except the costs, and is a bar to any other action for the same cause.

In the latest English case upon the principal question, namely, Buckland v. Johnson, 15 C. B. 145, Jervis, Ch. J., holds the former judgment against the son, although fruitless, to be a bar to the second suit against the father for the same goods, upon the ground that by the former judgment the property in the goods was vested in the defendant in the action. As this is the latest cause in the English courts which expressly decides the point, it may, perhaps, be received as the English doctrine. But this concession must be made with some hesitation in view of opinions expressed in other cases decided in the same country. In the very case in which that judgment is rendered, the chief justice takes occasion to correct what he supposes to be an erroneous statement of Tindal, Ch. J., in Cooper v. Shepherd, to the effect, "that according to the doctrine of the cases which were cited in argument by a former recovery in trover and payment of damages, the plaintiff's right of property vests in the defendant in that action.”

It was, therefore, the opinion of Ch. J. Tindall, that payment of the damages recovered is essential to vest the property in defendant, and this only a few years before the case of Johnson v. Buckland was decided. That case was decided in 1854, and mainly on the authority of Brown v. Wootton, reported in

Yelverton, as also by Croke, J. The reason for the decision, as given by Popham, Ch. J., is thus stated in the latter book:) "In the cause of action being against divers for which dam ages uncertain are recoverable, and the plaintiff having judgment against one person for damages certain, that which was uncertain before, is reduced in rem judicatum, and to certainty, which takes away the action against others." If the only object, or indeed the principal object, in obtaining a judgment in trespass, was to render certain the extent of plaintiff's injuries, or the amount of damages which would compensate for those injuries, we might be able to comprehend the force of this logic. But as it is the purpose of the law, and the main purpose for which courts of justice are instituted, to procure satisfaction for those injuries, we do not see the sequence in the reasoning of the learned judge.

Brown v. Wootton was decided in Trinity Term, 3 James I. Prior to that time, the law had been thought to be the other way. In Claxton v. Swift, 2 Show. 494, Shower said "it was never pretended, until the case of Brown v. Wootton, that a bare judgment should be a bar."

In Cocke v. Jenner, reported by Hobart, and which was in Subl

Trinity Term, 12 James I (only nine years after Brown v. Wootton), the question arose on the release of one joint trespasser, which was held to be a bar to a suit against the other, on the ground that it was equivalent to satisfaction; yet the language of the report leaves a strong impression that it was the opinion of the court that several judgments might be had, and that only satisfaction, or its equivalent, would bar proceedings against all who were liable. And the case of Corbett v. Barnes, cited from Sir W. Jones (time of Charles the First), which was an audita querela, while it holds that only one satisfaction can be had, implies clearly that several judgments may be rendered against joint trespassers. Indeed, that very case was where one judgment had been rendered in the King's Bench against one, and in the Common Pleas against three others, for the same trespass.

These cases show that, after as well as before the case of Brown v. Wootton, the law was supposed, by some of the ablest judges in England, to be otherwise than what it

decides; and we know of no case in which it was followed in England as implicit authority, until Buckland v. Johnson,

in 1854.

The rule in that case has been defended on two grounds, and on one or both of these it must be sustained, if at all. The first of these is, that the uncertain claim for damages before judgment has, by the principle of transit in rem judicatum, become merged into a judgment which is of a higher nature. This principle, however, can only be applicable to parties to the judgment; for as to the other parties who may be liable, it is not true that plaintiff has acquired a security of any higher nature than he had before. Nor has he, as to them, been in anywise benefited or advanced towards procuring satisfaction for his damages, by such judgment.

This is now generally admitted to be the true rule on this subject, in cases of persons jointly and severally liable on contracts; and no reason is perceived why joint trespassers should be placed in a better condition. As remarked by Lord Ellenborough, in Drake v. Mitchell, 3 East, 258, "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 second ground on which the rule is defended is, that by the judgment against one joint trespasser, the title of the property concerned is vested in the defendant in that action, and therefore no suit can afterwards be maintained by the former owner for the value of that property, or for any injury done to it.

This principle can have no application to trespassers against the person, nor to injuries to property, real or personal, unaccompanied by conversion or change of possession. Nor is the principle admitted in regard to conversions of personal property. Prior to Brown v. Wootton, the English doctrine seems to have been the other way, as shown by Kent (2 Kent, 388), in his Commentaries, referring to Shepherd's Touchstone, Title "Gift" and Jenkins, p. 109, case 88.

We have thus far confined ourselves to the examination of

the English authorities, and the principles discussed in them, and we are forced to the conclusion that even at this day the doctrine there is neither well settled nor placed on any satisfactory ground.

In turning our attention to the American cases, we have been able to find but two in which the point directly in issue has been ruled in favor of the bar of the former judgment; although there are some other cases which hold that the right of property is transferred by the judgment. The first of these two cases is Wilkes v. Jackson, 2 Hen. & M. 355. This was an early case in the Court of Appeals in Virginia, which seems to have passed without much consideration, and was mainly rested on the judgment of the same court in a former case, which does not appear to sustain it.

The other is the Rhode Island case of Hunt v. Bates, 7 R. I. 217. It is a very recent case, decided in 1862; but the absence of any other reasoning than a mere recapitulation of the English cases, and the remark that upon their authority the court is obliged to rest its decision, deprives it of any other weight than what should be attached to those cases. This we have already considered.

In addition to this, it has been decided in South Carolina and Pennsylvania, that the recovery of a judgment for the value of the goods converted, transfers the title to the defendant. (Rogers v. Moore, 1 Rice, 60; Floyd v. Brown, 1 Rawle, 121.)

On the other hand in the case of Livingston v. Bishop, 1 John, 290, in the Supreme Court of New York, in 1806, Kent, Ch. J., overrules Brown v. Wootton, and holds that judg ment alone is not a bar.

In Sheldon v. Kibbe, 3 Conn. 214, decided in 1819, in the Supreme Court of Connecticut, the court, by Hosmer, Ch. J., enters into an elaborate examination of the authorities, and a full consideration of the question on principle, and lays down the doctrine that neither a judgment, nor the taking of the body of the defendant in execution, will bar a second action. against a co-trespasser. Nothing short of satisfaction or release can have that effect.

In Sanderson v. Caldwell, 2 Aiken, 195, in the Supreme Court of Vermont, in 1826, it is held that neither judgment,