Sheldon v. Kibbe

Hosmer Ch. J.

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 reporter. In the latter case, which was an action of trespass, the defendant pleaded, that the plaintiff had obtained 'judgment against J. S. a co-trespasser, “ and had execution of damages.” The court held the plea good. Plowden said “ it was a good bar, for that all is but one trespass ; and satisfaction by one of the trespassers, is satisfaction for the other. And if the plaintiff had released to the other trespassers, the defendant, if he had it in his hand, might well plead it.” With him concurred Wray and Clench, the latter of whom said, “ by the same reason that he shall be charged with the same damages, by the same reason he shall have advantage of the satisfaction of them, by his companion.” It is unquestionable that the judg. ment in this case had been satisfied ; and I am inclined to believe, that in the case in the first of Leon, there had been satisfaction of the judgment. It would be passing strange, that in the 26th Eliz. there should have been in B. R. conflicting decisions, as must have been the fact between Morton’s case and that of Lendall and Pinfold, if the judgment in the latter had not been satisfied, and that the next year, as was done in Hitchcock v. Thurland, Morton’s case should be confirmed.

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 particularly. Wilkes v. Jackson, reported in the 2 Hen. & Munf. Rep. 355. But many cases have considered satisfaction as an indispensible requisite in bar of a separate suit. Such are Cooke v. Jenner, Hob. 66. and Corbit v. Barnes, Sir Wm. Jones, 377. That a judgment alone is not a defence, was adjudged in Livingston v. Bishop & al. 1 Johns. Rep. 290. and in Thomas v. Rumsey, 6 Johns. Rep. 26. it was thought necessary to plead judgment with satisfaction ; and on this latter ground the plea was held sufficient.

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 the person injured. It would seem to result from this admitted principle* that a judgment recovered against one joint trespasser, can be no bar to a judgment against another, in order to avoid the most palpable absurdity. “ If,” said Ch. J. Kent, in Livingston v. Bishop, 1 Johns. Rep. 290. “there can be but one recovery, it is in vain to say, that the plaintiff may bring separate suits ; for the cause that happens first to be tried, may be used by way of plea puis darrein continuance, to defeat other actions that are in arrear.” The common law, founded as it is upon reason, and allowing nothing that is nugatory, much less that is pernicious, will sanction no inutility or absurdity. Now, what can be more absurd, than to authorize the pendency and proceeding of twenty separate actions against persons concerned in a joint trespass, and after the accumulation of vast expense, to hold, that the first judgment bars the other suits ! Satisfaction of a judgment, equally with payment before action brought, must be attended with this effect ; but if the bare existence of a judgment had this operation, justice and convenience, in opposition to law indisputably established, would imperiously demand, that joint trespasses should be the subject only of a joint suit.

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 Lord Ellenborough. The doctrine advanced is, 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 befareis rendered in rem judicatam, and to certainty, which takes away the action against the others.” To me, this appears tobe a strange non sequilar, attributing a collateral effect to a judgment, which I have in vain sought for a principle to warrant. In Claxton v. Swift, 2 Show. 494., which was an action of assumpsit sounding in damages, the court held, a recovery without satisfaction against the drawer, was no bar to a suit against the indorser of a bill.

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. and B., and subscribed by each, is created by distinct acts; the assent and signing by one, not being the assent and signing by the other; but by legal result, it is the inseparable act of both. The united mind, with which the contract was made, gives it unity ; and the same unity proceeds from the united mind of joint trespassers. In both instances, the cause of action is one and indivisible, and the remedy is joint or several, at the option of the plaintiff. Between the legal effect of a judgment in cases of such intimate resemblance, why should there be a difference ?

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 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.” McDonald v. Bovington, 4 Term Rep. 825. Sheehy v. Mandeville, 6 Cranch, 265.

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.

Peters,. Brainard and Bristol, Js. were of the same opinion.