Severy v. Nye , 58 Me. 246 ( 1870 )

Appleton, C. J.

This is an action of trespass de bonis asportatis against the sheriff of the county of Somerset. To this he has pleaded in abatement, the pendency of a former suit by this plaintiff, against one Bartlett, a deputy of the defendant, for the same cause of action, whereby he has released the defendant.

The greatest precision and accuracy are required in pleas in abatement. They must be certain to every intent, and they must not be argumentative.

1. Pleading is a statement of facts, not a statement of argument. A plea should be direct and positive, and not by way of rehearsal, reasoning, or argument. “ Thus if soire-f acias be brought against a parson for the arrears of an annuity recovered against him, and lie plead, that before the writ brought, he had resigned into the hands of the ordinary who accepted thereof, this plea is argumentative, for he should have pleaded directly that he was not parson on the day of the writ brought, instead of pleading facts from which that conclusion was to be drawn,” etc. 1 Chit. PI. 518. “ Every plea must be direct and not by the way of argument or rehearsal.” Co. Lit. 803 a. A plea that the “ supposed debt, if any there be,” is bad on special demurrer, for not confessing the debt. Margetts v. Bays, 31 E. C. L. 223.

The pleader, besides setting forth the facts on which he relies to abate the plaintiff’s writ, inserts, by way of argumentation, a syllogism therein to this effect: that an election to sue a deputy-sheriff by a party plaintiff, and a suit by him is a release of the sheriff, whose deputy he is, that this plaintiff had commenced a suit against the defendant’s deputy, Bartlett, which is now pending, and that thereby he released the defendant.

It is true, that argumentativeness in a plea must, as a general rule, be taken advantage of by special demurrer. But this applies only to pleas in bar, not to pleas in abatement, as to which every exception may be taken on general demurrer.

2. The sheriff and his deputy are liable for the wrongful acts of the latter done colore officii. The party aggrieved may sue the sheriff or his deputy. The cases cited show that either may be sued, but they do not show that a suit brought and pending against the deputy-sheriff is a release of the sheriff as the plea alleges; “ and the said defendant avers, by bringing his said suit, which is still pending as aforesaid, directly against said Bartlett; the said plaintiff elected to release, and did thereby release this defendant from all further liability for the supposed trespasses, acts, and doings, and causes of action in his writ and declaration aforesaid above mentioned and set forth,” etc.

In the leading case of Campbell v. Phelps, 1 Pick. 62, the court were divided. “ The point upon which the majority are agreed,” observes Parker, C. «L, “is, that the sheriff and his deputy are not to be considered as joint trespassers in a tort done by the latter so as to subject them either to a joint action, or to give the party injured a right to bring his action against one after having recovered judgment and sued out execution against the other.” According to the opinion of the minority, it was held that “ whenever a trespass is committed by a deputy, by color of his office, the party injured may have a separate action against the sheriff and another against his deputy, and may proceed to judgment against either,” — and that a recovery against one, without satisfaction, is no bar to an action against the other. Both assume a judgment necessary to constitute a bar. The majority say that is sufficient; the minority require that it should be satisfied. In accordance with the views of the minority is the opinion of the supreme court of Connecticut in Morgan v. Chester, 4 Conn. 387, where it was held that notwithstanding the judgment against the deputy, and his imprisonment on execution, the cause of action against the sheriff remained unimpaired. It is nowhere intimated that the institution of a suit against the deputy is a discharge of the sheriff. Indeed, by recurring to the cases cited by the learned counsel for the defendant, while they recognize the right to sue either the sheriff or his deputy, they do not assert the proposition that a suit without judgment is a bar, nor can any such case be found, as applicable to parties sustaining the relation of sheriff and deputy.

In White v. Philbrick, 5 Greenl. 147, it was held 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 taking the same goods. “ Chief Justice Parker, in the case Campbell v. Phelps, appears to admit,” observes Weston, J., “that both in trover and in trespass, de bonis asportatis, the property vests in the defendant. This, Wilde, J., in the same action, denies, unless upon satisfaction of the judgment.” The right of action is merged in the judgment. “ It is the judgment,” observes Jervis, C. J., in Buckland v. Johnson, 80 E. C. L. 145, “that disposes of the matter and not the payment.” In same case, Maulé, J., says, “ Having his election to sue in trover, for the value of the goods at the time of sale, or for the proceeds of the sale, as money had and received, the plaintiff elected the former, and he has obtained a verdict and judgment. He has, therefore, got what the law considers equivalent to payment, viz., a judgment for the full value of the goods. . . . Having once recovered judgment his remedy was altogether gone; his claim was satisfied as against all the world.” The recovery of the judgment, not the institution of the suit, was the bar. In Hunt v. Bates, 7 R. I. 217, it was held that judgment in trover, for the full value of the goods converted, against the deputy making the attachment, was a bar to an action of trespass by the same plaintiff, against the creditor at whose suit the attachment was made. This was upon the principle that the plaintiff’s right was merged in his judgment.

In Emery v. Fowler, 39 Maine, 327, it was decided that a judgment against the principal, for the act of the servant, rendered upon a trial on the' merits of the case, was a bar to a suit against the servant for the same act, and that when such judgment was rendered, after the pleading of the general issue in an action against the servant, it was admissible under that plea. “ This case,” observes Shepley, C. J., “ requires that a single point only should be considered; whether one who acts as the servant of another, in doing an act alleged to have been a trespass, is to be so connected with the principal, who commanded the act to be done, that what will operate as a bar to the further prosecution of the principal, will operate as such for the servant,” and the court held in the affirmative. “ A familiar example is presented,” he adds, “ in suits against a sheriff or his deputy, which being determined upon the merits, against or in favor of the one, will be conclusive upon the other.” Nowhere is the doctrine stated that the institution of a suit against the deputy is a release of his principal.

The defendant and his principal were each, severally, liable to the plaintiff. The obtaining of judgment and the suing out of execution are an election which may constitute a bar, but not the commencement of a suit which may be abandoned at any moment. Hopkinson v. Hersey, 20 Maine, 452 ; Livingston v. Bishop, 1 Johns. 290.

JExeeptions sustained.

The defendant’s plea lad.

Defendant to answer over.

Cutting, Walton, Dickerson, and Barrows, JJ., concurred. Kent, J., concurred in the result.