Petticolas v. City of Richmond , 95 Va. 456 ( 1897 )

Buchanan, J.,

delivered the opinion of the court.

The only question to be decided on this writ of error is whether the plea filed by the defendant that the plaintiff had theretofore recovered a judgment against a co-trespasser for the same trespass or cause of action was sufficient, without avering that the judgment had been satisfied.

It is impossible to hold that such an averment was necessary without, overruling the case of Wilkes v. Jackson, 2 Hen. & Munf. 355, and disregarding the common law doctrine upon the subject as understood in England as well as in this State.

It is insisted that the decision in Wilkes v. Jackson is in conflict with the great weight of American authority and wrong in principle, and that it was decided without much consideration. It is true, that most of the decisions of the courts of this country which have passed upon the question, including the Supreme Court of the United States, are in conflict with that decision. There is no foundation, however, in our judgment, for the suggestion that the case was not much considered, and that the case of Ammonett v. Harris, 1 Hen. & Munf. 488, to which it refers as settling the principle governing both cases, does not sustain it.

These cases were decided by the same judges, with one exception in each case, and within six months of each other. Both cases were argued by very able counsel. In the earlier case most, if not all, the English authorities were cited and commented on. In each case all of the judges delivered opinions, which, when the two cases are considered together, show that the question of the right of a plaintiff to recover more than one judgment for a joint trespass, whether his action be joint or several, was examined with much care and learning, and the conclusion reached that only one final judgment could be rendered in a joint action, although there were several verdicts, and that a judgment against one trespasser may be pleaded in bar to an action brought against another for the same trespass, although there was no averment in the plea that the judgment had been satisfied.

If the conclusions reached in those cases were erroneous, it was not because the judges (distinguished alike for ability and fidelity) did not give the questions involved proper consideration, but because they fell into the same error, if it be error, that Baron Comyns, Baron Park, and other great English common law judges and lawyers fell into when they declared that such was the common law rule, and which the courts and judges of England are still laboring under, for we find that the Court of Exchequer in 1812, in the case of Brinsmead v. Harrison (L. R.), 7 C. P. 552, decided the precise question involved in Wilkes v. Jackson the same way. In that case, Kelly, C. B., after citing Brown v. Wooton, Yelv. 67 (cited and relied on in Ammonett v. Turpin and Wilkes v. Jackson), said: “This appears to me to be satisfactory and binding authority, and the more so because I find that one hundred and fifty years afterwards it is quoted in a book of tbe highest authortiy, viz., Comyns’ Digest, which alone would make it a satisfactory guide for us on the present occasion. But it does not stop there, for I find that Brown v. Wooton, and all the older cases are referred to in King v. Hoare, 13 M. & W. 494, where the question was fully and elaborately considered in the Court of Exchequer, .and a judgment pronounced by one of the most learned judges that ever sat in Westminster Hall. It is unnecessary to go through the enlightened reasoning of that very learned person. Suffice it to say that he deals with the whole law upon the subject. * * * * There being then this series of authorities, satisfactory of themselves, and having the sanction and approval of Chief Baron Comyns and Lord Wensleydale, notwithstanding the respect we entertain for the opinions and decisions of the American courts, where a different view of the law seems to be •entertained, I think we are bound to follow those of our own ■courts, and to hold that, upon principle as well as upon authority, this plea is a good answer to the action; and consequently the defendant is entitled to judgment.”

We have neither the right nor the inclination "verrule the decision in the case of Wilkes v. Jackson. It" was decided nearly a century ago. It is in accord with the common law doctrine upon the subject as understood and administered in the English courts before and since that decision was made. It has been referred to with approval in our own courts ([Wells v. Jackson, 3 Munf. 459 and Brown v. Johnson, 13 Gratt. at page 651) and seems to have met with the approval of the bar and the legislature, as no effort, so far as we know, has ever "been made to change the law as laid down in that case, although the legislature has made changes in a like rule of the common law, that a judgment recovered against one joint obligor was a bar to an action against another, on the same contract.

There is no error in the judgment complained of, and it must be affirmed.

Affirmed.