Boardman v. Acer ( 1865 )

Christiancy J.:

Can a plaintiff, who has sued several joint trespassers in separate actions, recovered separate judgments, and taken out execution upon one of them, but failed to obtain satisfaction, sustain an action upon any of the other judgments ?

This is the only question in the case. There is some conflict in the cases upon this point; but, after a careful examination of the authorities, we are satisfied that the great preponderance of authority is against the right to maintain the action in such a case. When separate actions are brought against several joint trespassers, there is nothing which requires the damages recovered in one of the actions, to be measured or limited by those in the others. The amounts recovered will, therefore, almost of necessity, be different, aniel generally are so. Aside from a few cases, which hold the mere recovery of a judgment against one. joint trespasser to be a bar to any action against another, (which we •do not think can be supported upon principle or authority,) almost all the cases seem to agree that the plaintiff may sustain separate actions against the several joint trespassers, though he can have but one satisfaction; but he may elect de melioribus damnis, and must elect •^vkich judgment he will enforce; and having made his election of one, he cannot resort to the others.

On a first view, it would seem plausible that the plaintiff should be allowed, as in cases of separate judg-' ments against different parties for the same debt, (as, for example, makers and endorsers,) to proceed with the enforcement of his executions upon all his judgments, until one satisfaction is obtained. But in the latter class of cases, the judgments being for the same amounts, the plaintiff is not put to his election. In the case of several judgments against joint trespassers, the suing out of an execution is held, and we think properly held, to constitute an election in favor of the judgment upon which it is issued. It would lead, to much confusion, and great practical difficulties, to attempt to carry out and enforce this election, if it were made to depend upon any fact occurring after that time. If several executions were issued upon all the judgments at the same time, or successively, would the plaintiff be held to have elected in favor of that upon which property should be first seized? This might not be his act, but rather that of the sheriff. If part of the money be, made upon the smaller execution, could the. sheriff proceed to collect the whole of the larger, or only enough to pay the balance upon the smaller? If part be first made upon the larger, could the sheriff proceed to collect, on the smaller, enough to make the balance, provided such balance did not exceed the smaller?- It is easy to see that such a ■ course of proceeding would be difficult to be sustained upon any idea of election between the judgments, and that it would lead to many embarrassing questions, especially as the executions might be in the hands of different officers, and even in different .States. i

"We think, therefore, the evidence offered by the defendant below, in pursuance of his notice, was improperly excluded. The judgment must, therefore, be reversed, with costs, and a new trial granted.

The other Justices concurred.