Mitchell v. Libbey , 33 Me. 74 ( 1851 )

Tenney, J.

— It is agreed that the trespass, for which this suit was brought, was the joint acts of the defendant, and one Stillman Libbey. Each was therefore liable for the whole damage done by both, as occasioned by himself, and on recovery therefor, the entire damage is allowed in the verdict; and there can be no separate estimate of the injury committed by each. On the satisfaction of the judgment recovered against Stillman Libbey by the plaintiff, for the joint trespass, the claim for damages was fully canceled, as effectually as it would have been by an instrument acknowledging payment, and by a valid contract of discharge. The pendency of an action against a joint trespasser, cannot change the principle. Gilpatrick v. Hunter, 24 Maine, 18.

It perhaps was in the power of the plaintiff to have omitted to take his judgment against Stillman Libbey after the verdict, and to have obtained a judgment in the present action for the same damage and costs. But not having done so, the foundation of this action is entirely taken away, by the plaintiff’s own acts, and no damage can be awarded for what has been perfectly satisfied by payment.

Costs for the plaintiff in an action of trespass, being dependent upon damages, cannot be allowed in this action for the plaintiff.

Plaintiff nonsuit.