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 Reipublicae 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 power 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 harassing 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 to ejectment, trover, malicious prosecution, as well as every other action founded on tort (for they are all in the same sense joint and several), it must be acknowledged that the decision of this case is of the last importance; for it settles a principle which put it into the power, of those who choose to use it, of multiplying law suits to almost any extent, to the great injury of individuals as well as of the community. In many cases founded on tort, the only question is the right of property; no personal blame being imputed to the defendant; and in many cases, the plaintiff is at liberty to sue in tort or contract, at his election. Surely, the public good does not require that there should be as many actions as there are parties. An officer, in attaching property, would often lay a foundation for a whole docket of causes: first, against himself; secondly against all the creditors, under whose direction he acted; and lastly, against all his assistants separately. If the levy should be a mistaken one, each must pay a bill of costs, and one the damages; and what, perhaps, is worse, the court might be employed a long time in trying the same cause against the different defendants with different juries (for there must be a new jury for the trial of every cause); and what is worst of all, the plaintiff will have it in his power, by this experiment, to ascertain which jury will give him the highest damages. That such a principle as this should exist in any code of laws, in any country, seems to be incredible. 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. In the case of Brown v. Wootton, Cro. Jac. 73, the very point now before the Court was made, and unanimously decided in favor 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 same doctrine is supported by a great variety of cases: Rawlinson v. Oriett & al., Carth. 96; Sir Humphrey Ferres & al. v. Arden, Cro. Eliz. 668; Lendall and Pinfold's case, 1 Leon. 19; Lacon v. Barnard, Cro. Car. 35. Indeed, no case can be found in the English books where there has been a judgment and execution against one tortfeasor, which could not be pleaded without satisfaction to a suit against another. The arguments on the part of the defendant turn wholly upon the supposed analogy between actions on joint and several contracts and those on torts. . . . I think, the decision in this case is opposed both to principle and precedent. Judgment to be rendered for the plaintiff. 376. PARMENTER v. BARSTOW SUPREME COURT OF RHODE ISLAND. 1899 21 R. I. 410, 43 Atl. 1035 TRESPASS on the case for negligence. The facts are sufficiently stated in the opinion. Heard on demurrer to plea in bar of former judgment for same cause of action against a joint tortfeasor. Demurrer sustained. STINESS, J. The plaintiff sued for damages caused by negligence of defendant's servants in cutting stone upon a sidewalk, pieces of which struck her eyes. The defendants plead a former judgment in favor of the plaintiff against Rouse B. Chace for the same cause of action and damage which is claimed in this suit. The plaintiff demurs to this plea, on the ground that the judgment against Chace does not bar a recovery in this action. The defendants rely on Hunt v. Bates, 7 R. I. 217, and Bennett v. Fifield, 13 R. I. 139. Hunt v. Bates was an action of trespass against one who had caused property to be taken on attachment, as the property of a third party, and a judgment in a trover against the officer making the attachment was set up in bar. The judgment was held to be a bar to the action of trespass. The opinion was based wholly upon English cases, and, so far as they concerned torts, they were those of trover and trespass. Broome v. Wooton, Yelv. 67; Cro. Jac. 73; Moore, 762; Adams v. Broughton, Andrews, 18; Buckland v. Johnson, 15 C. B. (6 J. Scott) 145. See also King v. Hoare, 13 M. & W. 494. The principle of the decisions was that, by the judgment in the action of trover for the full value of the goods, the property in the goods was changed, by relation from the time of the conversion; and, hence the plaintiff, having no further interest in the goods themselves, could not sue in trespass for taking them. Thus the judgment became a bar to a subsequent suit in trespass. Such a conclusion rests upon a reasonable ground, whatever may be said about the more modern doctrine that the title does not pass until satisfaction of the judgment; a question not now before us. If a judgment was regarded in law as equivalent to a payment, then a plaintiff could have no further action, because he would have received full satisfaction for the value of his property. From such cases the rule came to be stated that a judgment against one joint tortfeasor would bar an action against another. But, even in England, this was stating the rule too broadly. In Lacon v. Barnard, Cro. Car. 65, one was sued in trover who pleaded a former judgment against another in trespass. The plaintiff replied that damages were only recovered for the taking and detention, and not for conversion. The replication was held to be good upon the ground that as the plaintiff had not recovered the value of the sheep in the trespass suit, but only for their detention, the property had not passed from him. In that case the two actions were allowed to stand. Hence it appears that the English rule, traced to its foundation, was simply this: that when title was held to have passed by a judgment in trover, the judgment was a bar to a subsequent action against a joint tres passer. The rule which has grown out of cases of trover and trespass was applicable to Hunt v. Bates. Should it be the rule in all joint torts? We think not. The reason on which the rule is founded does not apply to other torts, as we have seen. Furthermore, as pointed out by Mr. Justice MILLER in Lovejoy v. Murray, 3 Wall. 1, the principle of transit in rem judicatam, the merging of the cause of action in a judgment which is of higher nature, does not apply, because this plaintiff has no judgment against this defendant. It relates, moreover, to a single cause of action, like a partnership contract or a joint note. Where there is but one cause of action there can be but one judgment. There is good reason to apply this principle to a taking of goods on an unlawful attachment, since that is one act and the joint act of the attaching plaintiff and the officer taking the goods. But as to the other torts, like assault, trespass, negligence, and libel, while several may join in the wrong, the acts are so far individual and distinct as to give several causes of action. As to Hunt v. Bates, therefore, we have no need to make question at this time. In Cooley on Torts, 2d ed. § 137, and in Lovejoy v. Murray, it is stated that the only two American cases which directly hold in favor of the bar of the former judgment are Hunt . Bates and Wilkes v. Jackson, 2 H. & M. (Va.) 355. The rule in this country is that joint tortfeasors may be sued separately. We have seen that Hunt v. Bates, and, indeed, the English cases, only hold the contrary in cases of trover and trespass. As to other torts there is practical unanimity. Virginia stands alone in holding the judgment to be a bar in all cases. This it did in Wilkes v. Jackson, which was an assault case. That case has recently been reviewed and affirmed in Petticolas v. Richmond, 95 Va. 456 (1897), which was trespass on the case for negligence. The Court rests wholly on the English cases and acquiescence for nearly a century in the rule of Wilkes v. Jackson. The law of this country should be uniform as far as possible, and this would be a sufficient reason for following the prevailing rule in a mere matter of practice. By this rule joint tortfeasors may be sued separately, and we think that this is both reasonable and proper. We therefore sustain the demurrer to the plea. F. P. Owen, for plaintiff. Cooke and Angell and Arnold Green, for defendants. 377. MILLER v. HYDE SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1894 161 Mass. 472, 37 N. E. 760 [Printed ante, as No. 319]1 1 [TOPICS 1-3. PROBLEMS. The trains of two railroad companies collided while using the same track; the plaintiff was a passenger in one of them. May he sue both companies jointly? (1857, Colegrove v. N. Y. & Harlem R. Co., and N. Y. & New Haven R. Co., 6 Duer, 382.) The defendant's hogs, horses, and cattle, as well as those of W. and of C., trespassed on the plaintiff's land at various and different times; but the plaintiff could not show the specific harm done by the respective animals. May he recover the full amount from the defendant? (1906, Foster v. Bussey, 132 Ia. 640, 109 N. W. 1105.) The plaintiff was injured by a defect in a sidewalk, for which the abutting owner and the city were each liable under the law. May he sue them as joint tortfeasors? (1884, Feoria v. Simpson, 110 Ill. 295.) A had in his store an elevator-door defectively constructed and carelessly managed. The plaintiff, while riding in it, was pushed over and injured by the negligent act of B, a fellow-passenger. May he sue A and B jointly? (1905, Siegel-Cooper Co. v. Treka, 218 Ill. 559, 75 N. E. 1053.) An electric light company maintained in the street some wires defectively protected. A telephone company's wires overhung them, without proper protection. The telephone wires fell on the light wires, and the plaintiff was injured by coming in contact with the former and receiving the light current.! May he sue the two companies jointly? (1903, Economy L. & P. Co. v. Hiller, 203 Ill. 518, 68 N. E. 72.) An electric light company's apparatus, defectively insulated, charged the street with electricity. The city was culpable in not remedying the condition of the streets. The plaintiff was injured thereby. May he sue the city and the company jointly? (1904, Mooney v. Edison El. Ill. Co., 185 Mass. 547, 70 N. E. 933). The defendant owned a colliery on the bank of a stream. He and various other riparian owners continued for several years to dump the coal-dirt from the collieries into the stream. The plaintiff's water-power down the stream was thereby destroyed by the filling up of the dam-basin. The plaintiff could not prove how much damage was done by any one of the wrongdoers. Is each liable for the whole? (1868, Little Schuylkill Nav. Co. v. Richards, 57 Pa. 142.) The plaintiff was injured in a collision between cars of the defendant and a steam railroad. On trial it appeared that, after bringing suit against both as joint tortfeasors, he received $1000 from the steam railroad company and dismissed the suit against it. Was this a discharge of the street railway company also? (1910, Wallner v. Chicago Consol. Tr. Co., 245 Ill. 148, 91 N. E. 1053.) NOTES: "Joint tortfeasors: release." (C. L. R., II, 565.) (H. L. R., XII, 66.) (H. L. R., XII, 67.) effect." (H. L. R., "Joint tortfeasors: test of joint liability." (C. L. R., IV, 367, 383.) "Judgment against one and tender of amount: effect." "Judgment against one and partial satisfaction: effect." 'Judgment against one without tender or satisfaction: XI, 556.) "Release of one reserving rights against others." (H. L. R., XVI, 529.) "Discharge of one joint tortfeasor with reservation of rights against others." (H. L. R., XXII, 458.) "Joint wrongdoers; Distinction between joint tortfeasors and contributors to injury." (H. L. R., XXIII, 406.) 'Admiralty Torts; Damages recoverable from one of two vessels at fault." (H. L. R., XXIV, 150.) "Joint tortfeasors; Distinction between a release and a covenant not to sue." (I. L. R., I, 549.)] |