Hopkins v. Hersey , 20 Me. 449 ( 1841 )

The opinion of the Court was by

Weston C. J.

Whether a recovery, by judgment in trespass or trover, of the value of a chattel, does by implication of law amount to a transfer of title to the defendant, or those who held under him, without payment or satisfaction of the judgment, is a question, in regard to which there is a conflict of authority. Brown v. Wotton, Cro. James, 73; Adam v. Brougton, 2 Strange, 278; Murrell v. Johnson, 1 Hen. & Munf. 450, and Floyd v. Browne, 1 Rawle, 121, establish the position, that a change of title is effected by the judgment, without satisfaction. And the law is so laid down in 1 Chitty’s Pl. 76, and in 3 Dane, c. 77, art. 1, <§> 2. That satisfaction of the judgment, is what constitutes a bar of another action, is deducible from Moreton’s case, Cro. Eliz. 30, from Curtis v. Groat, 6 Johns. 168; Osterhout v. Roberts, 8 Cowen, 43, and Sanderson v. Caldwell, 2 Aiken, 195. And this opinion is sustained by Sergeant Williams in his notes, 2 Saund. 148, b. And in the Touchstone it is said, that if one recovers damages of a trespasser for taking his goods, the law gives him the property of the goods “ because he hath paid for them,” Shep. Touch, title Gift. Chancellor Kent holds it to be the more authoritative and reasonable opinion, that a collateral concurrent remedy is not barred, until satisfaction is obtained; although he admits that it yet remains an unsettled and vexed question. 2 Kent’s Com. 387.

The subject is discussed at some length in White v. Philbrick, 5 Greenl. 147. It was there decided that a judgment in trover, if execution be sued out thereon, though without satisfaction, is a bar to an action of trespass afterwards brought by the same plaintiff against another person, for the same taking, which was the foundation of the action of trover. This was decided upon the ground, that although co-trespassers are severally liable to the action of the party injured, yet when he obtains judgment against one' of them, and sues out-execution, this is an election de melioribus damnis, and bars him from proceeding against the others. Kent C. J. in Livingston v. Bishop, 1 Johns. 290, intimates that such might be the effect of suing out execution, as.does Thompson J. in Thomas v. Rumsey, 6 Johns. 26.

In the case of Osterhout v. Roberts, before cited, although the Court hold that it is satisfaction of the judgment which transfers the property, they -approve of the intimation in 1 Johns. 290, that a several judgment against one joint trespasser is no bar to a recovery of judgment against another ; but if the plaintiff has made his election, by suing out execution, he shall not proceed against another, But in that case the Court say further, “ this does not impair, or in the least interfere with the principle, that when a recovery is had against a party, not a joint trespasser, either in an action of trespass or trover,nothing short of satisfaction will change the property of the article, for which damages are sought to be recovered.” In White v. Philbrick, the defendant was a co-trespasser with him against whom the former judgment was rendered, and the decision there is limited to co-trespassers.

In this case, the several persons, who interfered with the plaintiff’s property, as appears by the exceptions, did so successively, at different periods, not jointly at the same period. The defendant, when he purchased and took possession of the plaintiff’s oxen, without right, became thereby liable to be charged in trover by the plaintiff. So did Chapman, who afterwards purchased and received them of the defendant. And we are of opinion,'that the judgment, in favor of-the plaintiff against Chapman, although a writ of execution has issued thereon, is no bar to the present action.

Exceptions overruled.