author: Judge Sherman :

text:
    *E. Wright v. J. W. Lathrop.
    Verdict and judgment for damages against one joint trespasser can not be pleaded in bar to a separate action for the same trespass against another joint trespasser.
    This was an action on trespass, with force and arms, for taking and converting goods.
    The defendant first pleaded the general issue of not guilty ; and, secondly, he pleaded that the plaintiff had prosecuted a separate action, for the same trespass, against one Asa K. Burroughs, in the Supreme Court of Portage county, and recovered against him a verdict and judgment for damages and costs. To this plea the plaintiff demurred, and the defendant joined in demurrer. The question of law thus presented upon the plea and demurrer, was adjourned from the Supreme Court of Portage county to this court.
    Whittlesey, Newton, and Sloan, for plaintiff:
    It is a proposition universally admitted, that torts are in their nature joint and several; that the plaintiff may sue all the trespassers in one action, or may sue each of them in separate actions; and that each is liable for the acts of all. This being the case, it would seem to follow that a recovery alone, without satisfaction, would not be a bar to another action against a co-trespasser. If this is not the case, the proposition first laid down falls to the ground; for it is in vain to admit a proposition to be true, and at the same time deny its necessary and irresistible consequences; one of which is, that, as the wrong at the time the suit was commenced (for it is not claimed that the commencement of the suit alone varies it), was a joint and several one, it necessarily continues so through all its various stages to final judgment and satisfaction ; for execution is as necessary a part of the suit as the original writ. If a recovery alone be a bar, the consequences would be most injurious. Many known and established principles at law would be violated. The plaintiff might commence separate suits against each individual wrong-doer (as he has a right to do), and the suit which-happened to be first tried might be pleaded by way of puis darrien continuance, which would necessarily involve the plaintiff in a bill of costs in each of the remaining suits. The doctrine that the plaintiff has an election de melioribus damnis, would be destroyed; for, as before observed, it is *not pretended that the bringing of the suit against one is an election; therefore, it can not be said that a recovery of a verdict against one, and a judgment upon that verdict, is an election; for there must be more verdicts than one, in order to give the plaintiff an opportunity of an election.
    The authorities in support of the demurrer, are 1 Johns. 289, and the authorities there cited; 3 East. 258. The same principle has been decided in Connecticut, and even carried further; that where a recovery was had against one, and his body taken in execution, and he swore out of jail under the poor laws, that was not a bar to an action against another. There are some old authorities, however, that stand opposed to this doctrine, and in these cases the court attempt to make a distinction between a contract when two or more are bound jointly and severally in an obligation (in which a recovery without satisfaction would be no bar), and a case sounding in tort, because, in contracts the damages were certain; but in tort, that which was uncertain is reduced to certainty. This reasoning we can not conceive to be correct, for, in a variety of cases founded upon contract, the damages to be recovered are as uncertain as those to be recovered in tort.
    In support of the demurrer the plaintiff also relies upon the case of Livingston v. Bishop and others, 1 Johns. 290, where C. J. Kent has collected and considered all the authorities on the point. Also, 2 Johns. 382; Mass. Dig. 601, 42; 1 Esp. N. P. 314 [420]; 1 Phillip’s Ev. 32, n. 6; 83 Mod. 6; 2 Shower, 484; Hob. 66; Wm. Jones, 377; 3 Burrows, 1345; 3 East, 258; Morton’s case, Cro. Eliz. 30; 2 Esp. 552; Johnson v. Brown, 1 Wash. 187; 3 Term, 27; 7 Term, 604.
    Wrioht, for defendant:
    The statute of Ohio, vol. 14, p. 338, provides, that where several are jointly sued in trespass, and some are found guilty, and some not guilty, those acquitted shall récover costs, and may take several judgments.
    Without such provision it is supposed the judgment would follow *the writ and count, and be entire for plaintiff or defendant. In actions upon contracta plaintiff can not enter a nolle proseguí as to one, unless for a matter operating to his personal discharges, without affecting the others, as bankruptcy and the like. 1 Tidd Prac. 632; 1 Wil. 89.
    In torts the action is joint or several, at the election of the plaintiff or defendant. As, if the plaintiff elect to bring a joint suit against several for a trespass, the defendants are not bound to unite in their defense, so that each would defend for and guarantee the innocence of the whole, and be subject to the whole damage, if any, when found guilty. Such a rule would be manifestly unjust; yet without statutory aid they could not have had judgment for costs or execution. It is believed to be a universal rule in trespass that where the defenses are joint, and the damages several, the plaintiff may elect to take a judgment for the best damages. Doubts, however, are admitted to have arisen in the application of this rule to cases where the suit is joint but the pleas are several, and the damages are severally assessed. In such cases the bettor practice seems to allow the plaintiff to enter a nolle proseguí as to all the co-trespassers except the one against whom the best damages are assessed, and to take his judgment against that one only, thus completing his election. The rule is the same in cases where the plaintiff has brought several actions for the same trespass. The right to elect is the same; it is as to taking judgments, not as to taking execution or satisfaction. No adjudged case is recolleoted where this doctrine has been questioned, except in New York. The cases there, I shall hereafter examine, and be able to show, I trust, are predicated upon a misapprehension of the law. In torts against several, it is a general rule that the plaintiff may, at any time before final judgment, enter a nolle proseguí as to one, and proceed against the others, but a nolle can not be entered as to one after judgment against the others. 1 Tidd’s Prac. 632; 2 Salk. 455; Noke v. Ingham, 1 Wils. 89; Shields v. Perkins, 2 Bibb, 229.
    In trespass against two, one pleaded non cul., and had a verdict against him; the other pleaded title to the goods in himself, which was found for him, but the court refused to *give judgment, it being one action, and the court apprised that the title was against the plaintiff. Buller’s N. P. 94, cites Hobart, 54; 1 Levins, 63, S. P.
    In Hill and Wesway v. Goodchild, Buller’s N. P. 494, & judgment was taken against two for several sums, which was reversed on writ of error. See also 5 Burrows, 2790.
    The plaintiff may enter a nolle proseguí when he comes to enter final judgments; and if he does not the defendants will have advantage of it on error. Tidd’s Prac. 632, 805; Cro. Eliz. 806; Heydon’s case, 11 Coke, 5.
    In Dale v. Eyre et al., a rule was taken to arrest the judgment where several damages were assessed, which was discharged because the defendant came too soon, and did not know but that the plaintiff would correct the error by entering a nolle. 1 Wils. 306 5 Salk. 455, 456.
    If several defendants sever in pleading, the jury who try the first issue should assess damages against all, with a cessat executio, and if the other defendants be found guilty they shall be contributory to the damages. 2 Tidd’s Prac. 804; 2 Ld. Raym. 1372; Strange, 610, 1222; Bull. N. P. 20; Carthew, 19.
    The form of the entry in such cases may throw some light on the law. It is, “ and because it is convenient and necessary that there be but one taxation of damages in this suit, therefore let the giving of judgments in this behoof be stayed until the trial and determination of the issues joined between the said ” A. B. etc. (the other defendants). 2 Tidd’s Prac. 670.
    It is laid down in Rastall’s Entries, 654, that from the precedents it would seem where there are several defendants in a joint trespass and a verdict is had against one or more, if the plaintiff chooses to proceed against the rest, the regular course is to enter, a cessat executio until trial is had of the others, and then elect against which of them he will take his final judgment, and enter a nolle as to the rest. The case of Crane and Hill v. Hummertone, reported in Croke James, 118, was trespass against two. They severed in their pleadings, and a verdict and judgment was had against each. The case was taken up from the common pleas, on a writ of error, and the error assigned *was, “ because there ought to have been but one judgment, and the plaintiff ought to have made his election against whom he would have taken his judgment.” The whole court was of opinion that as it was a joint trespass, one judgment only ought to have been, and that the judgment therefore should be reversed.
    Rodney v. Strode, Carthew, 19, was trespass against three. One of the defendants confessed, and the other two pleaded-jointly not guilty. A verdict was taken for plaintiff for one thousand pounds as to one and fifty pounds as to the other. The plaintiff entered a nolle as to him who confessed and for the fifty pound verdict, and took judgment against one only for one thousand pounds. The court held that the defect in the finding was cured by the nolles, for as the plaintiff might sue jointly or severally, he should have the same election as to damages. This judgment was affirmed in the exchequer chamber and in the House of Lords.
    The court determined, in Cooke v. Jenner, Hobart, 66, that if a trespass be joint, a release to one is good for all, for though several are concerned, yet it may be sued against one or all, for all are principals, and each answerable for his fellow; and as there can be but one satisfaction, a release to one is good to all.
    The same court determined in the case of Parker v. Sir J. Lawrence, Hobart, 70, on the same ground, that if the plaintiff brings a joint action of trespass, and the defendants sever in their pleas, and one is tried and found guilty and damages are assessed, the plaintiff may enter a nolle as to the others and take judgment.
    The case of Mitchell v. Millbank et al., 6 Term, 199, was trespass for assault, etc., against three, who made default. The plaintiff executed three writs of inquiry, and the jury assessed several damages. Defendants moved in arrest of judgment that there could not be several damages.

    Lord Kenyon, Chief Justice, says the plaintiff’s proceedings are certainly irregular; he has executed three writs of inquiry when one would have been sufficient; and if he had entered up final judgment it would have been erroneous; but he has discovered his taiistake in time, and, upon payment of costs, he may set aside his own proceedings, but there *is no ground to arrest the judgment. The judge says further, that it appears in the case cited from Strange, which is a very loose note, that the jury assessed several damages against the defendants. He also cited Rodney v. Strode, Carthew, 19, as authority. See also Esp. Dig. 321.
    Sabin v. Long, 1 Wils. 30, was also trespass against three. Two pleaded and the other suffered a default. On the issue the jury found a verdict for plaintiff for thirty-five shillings. Afterward the plaintiff executed a writ of inquiry on the default, and the jury assessed separate damages, and judgments were entered on both. The plaintiff now moved that the second damages be struck out, and for judgments against all three for the first assessments. The motion was overruled because it was moved after judgment, and the court said a plaintiff could take judgment de melioribus damnis where several damages are given or enter a remittitur; but taking judgment for the whole makes the judgment bad in law, and it can not be amended, for it is no misprision of the clerk.
    Sir John Heydon’s case, 11 Coke, 5, is one frequently cited and relied upon as a leading case; and although the court in Hill v. Goodchild, 5 Burrows, 2790, say it is confused and doubtful, and not law, and some of the points resolved have been ever since wholly disregarded by the English courts, yet it is deemed of too much importance to be wholly overlooked.
    Sir John brought trespass against three, F., T., and J. F. appeared, and the plaintiff declared against him with simul cum, and he pleaded non cul., so did T. The issues were tried severally; that between the plaintiff and F. first, and damages assessed to two hundred pounds. The damages against T. were assessed at fifty pounds. J. appeared and confessed the action, and a writ of inquiry was awarded, but none issued. Judgment was had for the plaintiff, which was affirmed in'error, the court adopting the following resolutions:
    1. Besolved, in trespass against divers who plead non cul. or several pleas, which are found in all for the plaintiff, damages shall not be assessed severally, although one did more wrong than another, because the trespass was entire, and the act of one is the act of all; but if they be found ^guilty at several times, they may, and if the plaintiff confess the trespass to be at several times, the writ shall abate.

      2. If two trespassers plead severally, both shall be bound with the damages assessed by the first jury, and the other shall have an attaint, though he be a stranger to the issue, because he is a privy to the charge. If one of them after appearance make default, a writ of inquiry shall be awarded to save a discontinuance, but none shall issue, because he shall be contributory to the damages taxed by the jury who tried the other issue, and the other shall not be charged with damages assessed upon a writ whereupon he can have no attaint; but if the other issue be found against the plaintiff, then it shall issue.
    3. Although there was a discontinuance against J., because in the common pleas, where the action was brought, there is no continuance after a writ of inquiry (otherwise if it is in the King’s bench), yet it is aided by the statute. 32 H. 8, c. 30.
    4. Forasmuch as in judgment of law the several juries here gave one verdict at one time, the plaintiff may have his election to have judgment de melioribus damnis by any of the inquests, and the same shall bind all, but there shall be but one único executio. In this case the greater damages were first taxed.
    5. In trespass against divers, who plead seyeral pleas triable by the same jury, and the jury sever the damages, all are vicious.
    I will now proceed to examine the authorities which bear directly .upon the rights of the defendant, to plead a former recovery against .a co-trespasser, in abatement, or bar of a suit against himself, and .think they will be found abundant to sustain the plea in this case.
    If a person injured by a trespass has brought an action against ,one of the parties to the trespass, he can not bring a second suit against any other of them; for, although the defendant in the second action be a stranger to the record in the first, he may, being a party to the trespass, plead the pendency of the first action, in abatement of the second suit; or he may plead the acquittal or judgment in the first, in bar of the second. 5. Bac. 185, Trespass G-.
    *But it can not be pleaded until the plaintiff has declared in both that it may be determined if it be the same cause of action. 5 Bac. 201, Trespass J.
    A former recovery in assault, etc., is a good plea, nothwithstanding subsequent damages, for the consequence of the battery is mot the ground of the action but the measure of damages. Bul. N. P. 19, cites Totter v. Beal, Salk. 11. If a battery be committed .by several, and a recovery he had against one, such recovery may be pleaded in bar to an action for the same battery against another. Bul. N. P. 20, cites Yelv. 68.
    If the person injured by a trespass sues one and obtains judgment, the others concerned may plead it in bar. Yelv. 68; Esp. Dig. 318, Selw. N. P. 46, 47.
    Judge Swift, in his late excellent digest, says, different actions can not be brought against different trespassers for the same tres pass; and if brought, the second suit may be pleaded in bar of the first. 1 Swift’s Digest, 532, 657. And the plaintiff can not sever and bring suit against one for part, and against another for other part of the same trespass. 1 Swift’s Digest, 533; vide also 15 Johns. 432.
    In Boyle v. Bayliff, 1 Camp. 69, Lord Ellenborough determined that the pendency of another Suit for substantially the same trespass may be pleaded in abatement.
    Where a matter has been tried upon a particular issue in trespass, and found by the jury, such finding may be replied as an estoppel. 1 Chitty Pl. 575; 4 Mass. 443; 3 East, 346; 2 Selw. N. P. 1243.
    Morton’s case in Croke Eliz. 30, was trespass. The defendant pleaded that it was done by him and one J. S. and that the plaintiff brought trespass against J. S. and recovered and had execution, and is satisfied. Wray, Ch. J., and Clench, Judge, were for supporting the bar. Goudy, J., contra; for the trespass is always several, and recovery against one, and satisfaction for the damages he has done him, is nothing to the trespass by the other; but a release to one is available to the other, for, by the release, he acknowledges himself satisfied l

    Goudy, however, seemed to yield, yet the cause was adjourned. He cites Hobart, 66, D; Lit., see. 376. It will be seen, by adverting to Esp. Dig. 415, and other compilers, that the opinion of the two judges has been received *by the profession as a decision of the sufficiency of the plea in bar upon tfie verdict and judgment, and the plaintiff’s election to bring his action single. The circumstances of execution and satisfaction were considered immaterial, except in the confused mind of Judge Goudy.
    Brown v. Wooten, Cro. Jac. 83, was trover for plate. The defendant pleaded that at another time the plaintiff had brought his suit against J. S. for the same plate, and recovered. It was objected that the plea was not good without averring satisfaction; but

      all the court held the plea to be good; for the action being against divers for which damages uncertain are recoverable, and judgment had against one for damages certain, that which was uncertain is reduced in rem judicatem, and to certainty, which takes away the action against the others. Popham, J., said, if one hath judgment to recover in trespass against one, and damages are certain, though he be not satisfied, he shall not have a new action. By the same reason, if one hath cause of action against two, and obtain a judgment against one, he shall not have remedy against the other, and the allegation that he hath the one execution for the cause is not an answer to the purpose. The difference between this case and the case of debt upon an obligation against two, is because every of them is chargeable and liable for the whole debt, and therefore a recovei’y against one is no bar against the other until satisfaction.
    This subject came under the consideration of the Supreme Court of Massachusetts, in Baker v. Lovet, 6 Mass. 68; and the decision there is not at war with the principles I contend for, although satisfaction was an ingredient of the plea in that case.
    The case was trespass by the plaintiff, an infant. The defendant pleaded in bar that it was committed jointly by him and one Pennies, and that, pending the suit, plaintiff had accorded with Pennies, who had paid him fifty pounds in full satisfaction. Plaintiff relied on his infancy. Judge Parsons says, it is confessed by the pleadings that the trespass was committed jointly with Pennies, and that Pennies has made full satisfaction. The plea in bar is sufficient, unless the plaintiff can avoid it for infancy, which the judge thought did avoid it.
    *It is certainly a singular feature in this case, as reported, that the plaintiff, though an infant, should be permitted to retain the satisfaction received, and relying upon his infancy, be permitted to recover a new satisfaction. Infants are, by law, protected in their rights, but not aided to do wrong to others. It does not appear that a release was given and pleaded, which, it is admitted, would have been void; and suppose the act voidable, which I do not dispute, it is conceived the election to make void should be accompanied by a restoration of that which he received as a consideration for the act he would avoid. But I consider the whole class of cases, and the doctrine of satisfaction by one inuring to the benefit of the whole, as turning upon the point, that the trespass is a unit which one discharge satisfies. It sounds in damages not ascertained or made certain, and when reduced to certainty, in rem judicatem, as in judgment, the uncertain cause of action no longer exists, but is merged.
    The highly respectable and erudite Court of Appeals in Virginia have, on a full examination of all the authorities and adjudications, maturely considered and decided the point in two cases before that court.
    The first, the case of Ammonet v. Harris and Turpin, 1 Hen. & Munf. 488. The plaintiff brought trespass against twelve. His writ was served on four only, who appeared, and the plaintiff had a verdict and a judgment against them. Afterward two of the others were served, who appeared and pleaded the former judgment in bar. The plaintiff demurred, and judgment was given for defendants. See also Selw. N. P. 46, 47.
    The second is the case of Wilkes v. Jackson, 2 Hen. & Munf. 355. This was trespass against T. U., who pleaded puis darrien continuance, that the plaintiff had, in another action, recovered in trespass one hundred and twenty dollars damages against B. U. for the same trespass. The material question raised in the court of appeals was, whether, in an action of trespass against one, he can plead in bar a judgment against another for the same cause of action in another suit. The court said that in a former case, 1 Hen. & Munf. 488, every judge expressed an affirmative opinion on the point in question, namely, that a judgment recovered in an action against one trespasser, may be pleaded in bar to an action ^brought against another for the same trespass, and judgment was given for the defendant.
    Opposed to this doctrine is the case of Livingston v. Bishop, 1 Johns. 289, in New York, and the cases in the same court, founded on that decision.
    In that case, five several suits had been brought for a joint trespass. Pending the suits, and before the trial of either, it was agreed that Bishop should be answerable for the whole damages, if, on trial, verdict should be had against him; and if the court should be of opinion the plaintiff was entitled to costs on the other suits, after the trial and recovery against Bishop, then the other defendants were to pay costs, otherwise not. Judgment was had against Bishop, execution taken, and satisfaction. Then the question as to costs, for the other four, was submitted without argument. Kent, J., observes, it is uncontroverted that for a joint trespass the plaintiff may sue all together, or each separately, and each is answerable for all. It would seem to result that a trial and recovery against one, is no bar to a recovery against another. If but one recover, it is in vain to say the plaintiff may bring separate suits, for the case first tried may be used puis darrien continuance to defeat the other. The more rational rule appears to be, that you may have separate recoveries, and but one satisfaction, and that the plaintiff may elect, de melioribus damnis, and issue execution accordingly; and when he has made his election, he is concluded by it, and the other defendant would be relieved on the payment of costs. This is agreeable to Sir John Heydon’s case, which was against several, and one appeared and pleaded, and afterward another appeared. They were separate venires, trials, and damages. The court gave the plaintiff election of best damages to bind all, and but one execution. Brown v. Wooten, Cro. Jac. 73, is opposed to this. There the court took a distinction between a recovery'of a thing certain, and a thing uncertain. In a joint contract on a bond, they held a recovery and execution no bar, without satisfaction; but where it rests only in damages, a recovery and judgment against one was a bar; for the uncertain demand was made certain, and the plaintiff should not resort to his uncertain demand again. There was in that case an execution, and, so far as the court go beyond, their opinion is extrajudicial. *The principle of things certain and uncertain, applied equally to both eases; yet afterward, in Claxton v. Swift, 3 Mod. 86; 2 Show. 484, in assumpsit, the court held a recovery without satisfaction,was no bar. Brown v. Wooten was clearly introductory of a new rule. It is laid down in Brooke, Judgment, pi. 98, you may have several actions, damages, and executions, and one can not plead recovery and defendant in execution in bar. In Morton’s case it was doubted if judgment and satisfaction was a bar, but it was allowed by the court. Many cases since Brown v. Wooten seem to disregard it, and make satisfaction the test. In Cook v. Jennes, Hob. 66, held, that plaintiff may choose the best damages, but 6an have but one satisfaction. In Corbet v. Barns, Wm. Jones, 377, held, that for one assault plaintiff can have several suits and recover, but when he has had one recovery and satisfaction, he can not have a second satisfaction.
    In Bird v. Randall, 3 Burr. 1345, Lord Mansfield said the plaintiff could proceed against one or all of several joint trespassers as he pleased, but should have but one satisfaction. I am, therefore, inclined to question the extent of Brown v. Wooten, and to hold that a recovery against one joint trespasser is not alone a bar to a suit against another. There must at least be an execution to bring the case within the facts on which that decision was had, and that, perhaps, may be considered an election de melioribus damnis, and sufficient to conclude him. The trial and recovery in the present case was, therefore, no bar to the other suits, and the plaintiff is entitled, under the agreement, to costs. The fact that execution has issued,and satisfaction been received on the judgment against Bishop, is not material, as the present question arises upon the agreement.
    I have said I trusted I should be able to show that this case, Livingston v. Bishop, was predicated upon a misapprehension of the law. The other decisions in New York are founded on this, apparently without further examination of the law, and if I am able to shake the authority of this, the others must fall of course. I have not quoted Judge Kent’s opinion at length, but sufficiently so to lead to a correct understanding of' the ease, and to avoid doing him injustice in the examination I shall give it. I am aware it may be considered vain, it not visionary, to call in question the opinion *of Judge Kent. Justly esteemed by the profession, almost universally, as occupying the first rank among the able jurists of our country, if not of the age in which we live, his opinions and decisions are generally received as law, without examination, and the severest scrutiny rarely fails to remove all doubts and to insure conviction in his accuracy; yet, discouraging as the prospect is, where the odds are so fearful, I am encouraged forward by my own conviction of his error, and his declaration of surprise “ to meet with so much contradiction and uncertainty upon the subject.”
    The judge starts with an uncontroverted proposition, that for a joint trespass you may sue all together, or each separately, and that each is answerable for all. He deduces the result, that a trial and recovery against one, is no bar to a recovery against another; and assigns as a reason, that it would be vain to allow separate suits, for the cause first tried might be used to defeat the other. You may sue all or each, and each is answerable for all, is the proposition. The result which seemed to the judge to flow from this, is surely not inevitable. The right to sue one or all, and to make each liable for all, does not necessarily include the right to take
      judgment and execution against each. The rule only embraces the right to sue, and does not touch the legal effect of any subsequent-act of the plaintiff or the court. A discharge by the plaintiff, after suit, would be a good bar, and yet would not affect the right to sue, nor the extent of liability when the suit was brought. So with all other acts after suit brought. The judge advances but one solitary reason himself, which is, that it would be vain to allow the right so to sue, because the subsequent act might be used to defeat the suit. Would not the same rule hold good after judgment and execution, and satisfaction ¶ And also in cases of accord and satisfaction, or release.. Each are after acts, and in no way affect the right to sue, although they may bar the right to recover. One brings an action of slander, and proceeds to trial and verdict, which has ascertained his right to sue, yet, if he die before judgment, however clear his right to sue, the right to recover judgment is gone, even for the costs; and that, too, without any act of his, and notwithstanding it is an uncontroverted maxim, that *the act of God injures no man. Might we not with equal propriety with the judge, say, in these cases, it is vain to give the right to sue, when the subsequent acts may be used to defeat a recovery. His rule as to the election of the best damages is equally unfortunate, though he thinks it the more rational. It strikes at the very foundation of the doctrine as to election. It is a right in the plaintiff to take judgment for the best damages, and not to take execution. No adjudged case, or even dictum, is found where the right to elect execution for the best judgment has been claimed or allowed. It is never spoken of, except as a right to elect the best damages for judgment, while the case is in paper. That rule, he says, is agreeable to Sir John Heydon’s case. The judge is there under a mistake; in that case there were several verdicts, but no judgment, and questions arose if there had not been á discontinuance as to all but the first, and whether the plaintiff had a right to elect to take judgment against the whole for the best damages; and resolved that he had a right so to elect to take one judgment, and have one execution. The resolution would have meant precisely the same if silent as to the execution, for there could be no execution where there was no judgment. But if the resolutions had been that the plaintiff could have several judgments, and but one execution, it would have accorded with the judge’s view of it. The election must be of record, and be allowed by the court, as it is shown in numerous cases I have cited, and is made subject to the payment of costs as to all the other defendants, than the one against whom the best damages are assessed, for which he takes judgment. Those cases incontestably prove that, if he take several judgments, it would be error. Some confusion has arisen from using the terms judgment and recovery in speaking ot interlocutory judgments on defaults and verdicts. What reason exists for carrying the rights to elect forward of the judgment to the execution ? None is perceived. The issuing execution is the sole act of the plaintiff; it adjudges and determines no rights, but is a means of enforcing obedience to the adjudication of the right; it forms no part of the record. A former recovery (judgment) is often pleaded in bar; but was a former execution, without satisfaction, *ever pleaded in any case? The judge next proceeded to examine the case of Brown v. Wooten, Cro. Jac. 73, which he acknowledges is opposed to his own view, and which, he thinks, introductory of a new rule. He says the court took a distinction between a recovery of a thing certain, and one uncertain, etc. The court took no such distinction, as appears in the report, but all were of the opinion the judgment was a bar without satisfaction, because uncertain damages were reduced, in rem. judicatem, to certainty. Judge Popham said, arguendo, the difference between trespass and debt, on obligation against two, is that in debt each is liable to the whole debt, and, therefore, a recovery against one is no bar for the other, without satisfaction. This is not attributable to the court, and is admitted to be a careless expression of the judge, if reported correctly; but a moment’s reflection upon the nature of actions arising ex contractu will put the matter right. On joint contracts you can not recover separate judgments. If non-joinder of all the parties appear on the record, it is bad on demurrer, or on error; if not, the party may avail himself of the objection by plea in abatement, and it will not be disputed; but if a recovery were had against one, and then suit brought against the other, the former judgment would be a bar, although there is a dictum to be found, that a recovery against one of several joint contractors will not bar a subsequent recovery against all in one suit. That does not touch my position, and I will not delay to examine why that may be so. If the contract be joint and several, the right depends upon the contract of the parties.

      The law never implies a joint and several contract; it always results from express stipulations of the parties. Three men in partnership buy goods on credit; they are jointly liable, but not severally; if they give & partnership note the case is the same. If, however, three agree in writing jointly and severally to pay money, or do anything else, the other party to the contract has the option to make it joint or several as he pleases; and if he determines to make it a several contract, and so sues, he recovers against each upon the several contract of each to pay, etc., and judgment is had against him upon that contract, because he has so contracted; not because of any legal liability aside from the contract. *That contract is to pay the money, and nothing short of the payment discharges it; his liability, when severed, is no way, in law, connected with the contract of the others than each is as collateral security for the other ; and even in that case, if the plaintiff pursues his judgment after his debt is paid by another, or the security, you resort to a species of equitable jurisdiction to prevent his getting his pay twice. The analogy between such a case and trespass fails altogether. The liability of trespassers is not ascertained or made certain but by the'finding of the jury and judgment of the court. The proceedings in the case are stricti juris. In the case of the joint and several contract, the liability is made certain by the parties themselves, and you resort to the court merely to enforce a performance. I can scarcely conceive a case to exist where there can be a several liability for the same debt, not arising from the contract of those liable. I have found but one, and in that, the court, including Lord Mansfield, determined the former recovery of a judgment against one, and satisfaction, was a bar. It is the case cited by Judge Kent, of Bird v. Randell, 3 Burr. 1345. A servant who had bound himself apprentice, under a penalty for his service, was enticed away from his employ. The master sued and recovered a judgment for the penalty of the apprentice. He afterward brought a suit against the person who enticed him away, and, pending the second suit, received the first judgment; on trial of the second suit, judgment was rendered for the defendant, and Lord Mansfield said, arguendo, he should doubt if the judgment would be a bar without the receipt of the amount, but he would not determine that. He said in the same way that Judge Kent quotes, that plaintiff could proceed against one or all, but shall have only one satisfaction. In a report of the same case in Blackstone, 388, Lord Mansfield is made to say, the circumstance of the payment afterward made no difference in the case.
    Judge Kent considers a recovery in separate suits, against the drawer and indorser of a note or bill, analogous to the case of joint and several trespassers; yet, in the case put, the liability of the drawer and indorser was never joint nor dependent upon the same contract, either in substance *or the time of making it. The liability of joint trespassers arises from the legal fiction, that the act of one is the act of all, not on several acts by each.
    If I am correct in the distinction as to bills, the decision of the court in Claxton v. Swift, 3 Mod. 86, and 2 Show. 484, does not in the least shake the principles of Brown v. Wooten, as Judge Kent supposes. The judge quotes Brooke, Judgment, pl. 98, as impugning Brown v. Wooten, and makes him say, “that one can not plead that plaintiff has recovered against another for the same trespass, and taken him in execution,” etc.

    The taking and detaining the body of a defendant in execution is held to be the highest species of satisfaction for a judgment; and, strange as it may seem, the doubt expressed by G-oudy in Morton’s case, Cro. Eliz. 30, and the decision in Cocke v. Jenner, Hob. 66, and in Corbet v. Barns, Wm. Jones, 377, that you can have but one satisfaction, and so far directly contrary to Brooke, are immediately afterward quoted and arrayed against Brown v. Wooten; and stranger still, the whole of these cases, though relied upon as authority to overturn Brown v. Wooten, are adverse to the opinion and decision of the judge by whom they are cited, in the very case in which he cites them. He holds that judgment and execution issued without satisfaction would be a bar; as if, doubting and confused himself, he feared he had not got rid of the decision in Brown v. Wooten. Judge Kent says further, in that case there appeared to have been an execution in the first case, and so far, therefore, as the opinion of the court goes to declare that a judgment alone constitutes a bar, the opinion was extrajudicial. After this declaration it will scarce be credited that his main reliance had been upon the extrajudicial doubt of Judge G-oudy, and the extrajudicial doubt of Lord Mansfield, accompanied by a protest that he would not determine the point; that the point as to trespassers could not have arisen in the case before Lord Mansfield, and that the very opinion of Judge Kent himself was extrajudicial:
      The case he decided presented only the question as to the right of costs in the second suit; nothing as to the damages, or the election de meliorbus damnis. In his case, also, there was an execution and satisfaction, and the point presented to him as to costs *did not arise in any regular course of pleading or proceedings, but upon an extrajudicial agreement, entered into by the parties, that as to costs they would abide by the opinion of the court. No judgment was asked or rendered. Pressed by this circumstance, or something else, Judge Kent says, at the conclusion of his opinion, that the fact that execution had been issued, and satisfaction received of the judgment against Bishop, is not material, as the present question arises upon the agreement. The opinion he pronounced was that the plaintiff was entitled to costs up to the time of the agreement. The execution and satisfaction here were not material, yet he had labored through the whole opinion to show that the issuing and execution alone was more material than the judgment itself in determining the rights of the parties. The fact is, the judge has gone too far, and involved himself in difficulties. If his opinion on the case is to be relied upon, judgment, execution,and satisfaction, all combined, would be no bar 1
    No reason is perceived in favor of the doctrine claimed by the plaintiff and supported by Kent. The right to bring several suits in trespass is not analogous to the same right in any other case, and is particularly onerous. Why not resort to all you intend to seek recompense of at once? The danger arising from want of certainty as to all engaged under the statute allowing part to be found not guilty, does not jeopardize the plaintiff’s right. The law does not favor a multitude of litigation and actions for one subject. In general, where several suits are brought unnecessarily, courts will order a consolidation. Our legislature have provided for it. [22 Ohio Laws, 67.] Similar laws exist in other states, and in the congressional enactments. The rule in trespass is anomalous, and should not be extended. The proceedings in such suits are stricti juris. On the other hand, many reasons exist for making the first judgment conclusive; besides those already given, I will trouble the court with but one. In trespass de bonis asportatis (the case at bar), the recovery of judgment changes the ownership of the property, if it has not been returned. The property in the chattel is changed and vested in the defendant when judgment is recovered, and if sold by judicial ^process, the defendant is entitled to the money. 11 Johns. 382. Fenner, Judge, in Brown v. Wooten, Cro. Jac. 73, says that in ease of trespass, after judgment given, the property of the goods is changed, so as the plaintiff may not seize them again. No contribution can be enforced among trespassers. It would, then, be manifestly unjust to give a defendant, against whom judgment was first had, all the advantage resulting from a change of property, and still hold the co-trespassers liable to all the damages assessed against the one first sued, or even more if more should be assessed by a jury, and perhaps exonerate the defendant, who had acquired the right of property, the damages recovered against whom formed the legal consideration of the transfer. The case at bar is a strong one to show the injustice of such a doctrine. The defendant here is sought to be made a trespasser, not for any act done by him, but by relation, he being the attorney marked on the writ on which the goods were taken in execution by the sheriff, the former defendant, which is the trespass complained of. A recovery for, say twelve hundred dollars, was had against the sheriff, but no execution issued, and the present suit was brought, the sheriff used as a witness, and judgment had in the common pleas against the present defendant for twenty-five hundred dollars on his evidence! The whole property taken was, by the first judgment, transferred to the sheriff. By his procurement better damages (more than double) are assessed against a solvent defendant, on which judgment is claimed.
    The authorities in Bacon, Buller, Salkeld, Yelverton, and the cases of Crane & Hill v. Hummertone, Mitchell v. Millbank, Ammonet v. Harris & Turpin, Sabin v. Long, and Boyl v. Bayliff, seem not to have met Judge Kent’s notice in deciding his case. The publication of Swift’s Digest and the case of Wilkes v. Jackson have occurred since, and must have been made with a full knowledge of his decision. The authority and respectability of the Yirginia Court of Appeals are equal to that of any other court in the Union.
    From the foregoing cases, and the principles applicable to the action of trespass, I think we may fairly deduce the following rules as the true One pertaining to the action, and as going far to reconcile the conflicting decisions and dicta with themselves and with reason:

      *1. That the person injured by several joint trespassers may elect to bring suit against all or any part of them.
    2. When several are sued in one suit, and join in their defense, the verdict and judgment must be entire as to all found guilty.
    3. Where several are sued in one suit who sever in their defense, the jury may assess either joint or several damages ; but it several damages be .assessed, the plaintiff may enter a oessat ex-ecutio until a trial is had against the others, and then, on entering a nolle as to all the rest, elect and take judgment against the one as to whom the best damages are found.
    4. Where several suits are brought, the plaintiff has the same election on the same conditions.
    5. But in no case can the plaintiff take two judgments for the same trespass, and if he seek to do so, the first judgment may be pleaded in bar of a second recovery.
   Opinion of the court, by

Judge Sherman :

The only point presented by the pleadings is whether a judgment recovered by the plaintiff, against one joint trespasser, is a bar to an action brought against another for the same trespass. I am aware that the authorities on this subject are by no means clear or reconcilable. An examination of the English reports will show that though there is no modern case where the precise question made by this plea has been adjudicated upon, yet the principles upon which it rests have be.en often discussed. In Bird v. Randell, 3 Burr, 1355, Lord Mansfield observed that in case of joint trespass the defendants were all liable to the plaintiff, and he might proceed against one or all of them, as he pleased, yet he shall have but one satisfaction from all. In Drake v. Mitchell et al., 3 East, 251, Lord Ellenborough says: “ I have always understood the principle of transit in rem judicatem to relate only to the particular cause of action in which the judgment is recovered operating as a change of remedy, from its being of a higher nature than before. But a judgment recovered in any form of action is still but a security for the original cause of action, until it be made productive in satisfaction to the party; and therefore, till *then it can not operate to change any other collateral concurrent remedy, which the party may have.”

That each joint trespasser is answerable for the acts of all, and that the plaintiff may pursue his remedy against one or all, is un* questioned. He is entitled to a compensation in damages for the injury he sustained by the commission of the trespass. This compensation he may recover from one or all of the joint trespassers. His remedy against them severally is concurrent, and they are quasi collateral security for each other until the plaintiff has obtained satisfaction. It would seem'to follow, from this doctrine, that a recovery of a judgment against one joint trespasser would be no bar to a suit and recovery against another.

If a judgment, against one of several joint trespassers, is of itself a bar to all legal proceedings against the others, it will, in a great degree, deprive the plaintiff of his right of bringing several suits, and of his election de melioribus damnis, as each defendant, except in the suit first tried, may plead puis darrien continuance, the recovery in that suit as a barato the plaintiff’s further proceeding, thereby limiting the plaintiff to the recovery of a single verdict, and subjecting him to the payment of costs in all the suits but the one first tried.

If a joint action be brought against all the trespassers they may sever in their pleas, and the several issues made may be tried by different juries, and separate and different damages assessed; and the plaintiff has his election of the damages so assessed, which shall bind all the defendants. Haydon’s case, 11 Co. 5.

The case of Brown v. Wooten, Yelv. 67; Cro. Jac. 73, is the only one I have been able to find in the English reports, where a plea of a former recovery against a third person for the same injury, without an averment of satisfaction, was held good. That was an action of trover for goods; the defendant pleaded a judgment and execution, in favor of the plaintiff, against one J. S. for the same goods, and the plea was sustained. In Livingston v. Bishop et al., 1 Johns. 290, Chief Justice Kent, speaking of the case of Brown v. Wooten, says it is clearly introductory of a new rule, and *cites Brooke, Judgment, pl. 98; Morton’s case, Cro. Eliz. 30, and that many cases subsequent to that seem to disregard it, and make the satisfaction against one trespasser the test of the plea. In Brown v. Wooten, the plaintiff had sued out his execution on the judgment against J. S., and if that is to be considered an election by the plaintiff de melioribus damnis, it will conclude him from pursuing the other joint trespassers. But, in the case at bar, the plaintiff has not issued an execution on the judgment recovered by him, or done any other act from which it would be inferred he had elected the damages recovered by the verdict and judgment mentioned in the plea.

The Court of Appeals, in Virginia, has decided that a verdict and judgment against one of several joint trespassers was a bar to a recovery against the others. 1 Hen. & Munf. 488; 2 Hen. & Munf. 355.

The Supreme Court of New York, in Livingston v. Bishop et al., 1 Johns. 290, determined that a recovery against one joint trespasser is not a bar to a suit against another, and this decision has been adhered to by the same court in a number of subsequent cases.

When the authorities present so much uncertainty and contradiction on the subject, the court feel themselves at liberty to adopt that rule which to them appears most consonant with reason and justice. And the rule which appears the more rational to the court, and in accordance with 'the general principles of law applicable to the action of trespass, is, that the plaintiff may elect to bring separate actions for a joint trespass, and may have separate verdicts and judgments, but that he can have but one satisfaction. This will preserve to the plaintiff the right, which all the authorities admit he has, to bring a joint suit against all or a several suit against each joint trespasser; and, also, secure to him his election de melioribus damnis.

The opinion of the court, accordingly, is that the plea in bar is insufficicient, and the demurrer thereto sustained.

      NoTE by the Editor. — As to joint trespassers, see also v. 250. As to contribution by, see xviii. 1, and cases; ii. 89.


source: Caselaw Access Project

author: By the Court:

license: Public Domain

text:
    *Lessee of Johnston v. Haines.
    Where the person taking acknowledgment of a deed gives himself no official character in his certificate or subscription, the acknowledgment is insufficient, and the record of the deed irregular. Copy of it duly certified can not be given in evidence.
    Proof to supply defective certificate of acknowledgment of a deed can only be given when original deed is produced.
    At the trial of this cause, the plaintiff, in deducing title, offered in evidence the copy of one deed in the chain of title, duly certified by the recorder, together with the copy of the certificate of acknowledgment as made by the person taking it. In this acknowledgment it was not expressed that the person taking it was an officer of any kind, and the name subscribed was without any official character. The plaintiff offered to prove, by other evidence, that the person who took the acknowledgment was, in fact, at the time a justice of the peace duly commissioned and qualified. The defendant objected to the copy of the deed, and to the evidence of the character of the person who took the acknowledgment. The deed and evidence were both rejected, and the plaintiff was nonsuit. A motion was made for a new trial, on the ground of error in rejecting the deed and evidence, and the decision of the motion adjourned to this court.
    Leonard, for the plaintiff.
    Atkinson, for defendant.
   By the Court:

When a copy of a deed, signed by the recorder, is offered in evidence instead of the original, its admissibility depends upon the fact whether'the original has regularly been admitted to record; for the mere fact of recording a deed, without the legal requisites, gives it no validity.

The statute, providing for the execution and acknowledgment of deeds, which was in force when this deed was recorded, required that the execution of all deeds for the conveyance of lands should be acknowledged by the grantor, or proved by the subscribing witnesses, before some judge or justice of the peace, and recorded in the proper county. The acknowledgment or proof is nothing unless it be taken by an authorized officer, and whether the person be authorized or not, is a fact which ought to appear in the certificate *of the officer himself. This, prima facie, would be sufficient to authorize the record and to throw the proof on the person impeaching the deed. In this case nothing of the kind appears in the certificate or attached to the subscription, consequently the deed was not duly recorded and the copy can not be received as evidence.

Proof, distinct from the certificate upon which the record was made that the person who made the acknowledgment was, in fact, a justice duly qualified, could not be received at the trial, because it was a copy, and not the original, to which the evidence was intended to be applied. We do not decide what would be the law had the original deed been in court, and proof offered that the person who took the acknowledgment was a justice. We think it clear, that in the case of a copy such proof can not be received. The record being irregular the original is not proved, and until that is done a copy can not be used. The court decided correctly in rejecting the testimony, and the motion for a new trial must be overruled.

      NoTJS by the Editor. — The law of this case is recognized in the case of lessee of Livingston v. McDonald, ix. 168.


author: By the Court :

text:
    John Clark v. John Boyd.
    Where there is other proof that a subscribing witness to a writing resides in a different jurisdiction, it is not necessary to take out a subpena and have a return not found.
    Proof of the handwriting of the subscribing witness to a writing where the witness is out of the jurisdiction, is proof of its execution by the party.
    An assignment indorsed upon a note, and the note retained by the assignor-until his death, vests no interest in the assignee.
    This action was brought by the plaintiff, as assignee of Philip Pierce, and was founded upon two promissory notes, one for thirty-eight dollars, the other for two hundred and eighty dollars, both given by the defendant to Philip Pierce. The defendant pleaded non est factum, without affidavit, and gave notice of payment.
    At the trial before the Supreme Court in Highland county, to prove the execution of the assignment indorsed upon the note, the ¡plaintiff introduced a witness to prove the handwriting of the subscribing witness to the assignment, accompanied with proof that ,he resided in Pennsylvania. No subpena had been taken out for the witness, and the defendant’s counsel objected to the evidence. The objection was overruled, and the proof admitted. The handwriting of the attesting witness to the assignment being *proven, the plaintiff offered to give the notes in evidence to the jury, but the defendant objected, and insisted that the handwriting of the assignor must also be proven. The court overruled the objection, and the notes were read in evidence to the jury, and the plaintiff rested his case.
    The defendant then gave evidence to the jury, that Pierce, the assignor of the note, had been some time deceased, and that, at the time of his death, the note for two hundred and eighty dollars was found among his papers, indorsed by him to the plaintiff. That the executors, supposing it to be the property of Clark, had not inventoried it as part of the assets of Pierce, but had delivered it to the plaintiff. Upon this evidence the defendant’s counsel moved the court to instruct the jury that the plaintiff ought not to recover, unless, in addition to the fact of executing the assignment, they were satisfied the note so assigned had been delivered to the assignee, or some person for his use. This instruction the court gave, but the jury found a verdict against the defendant for the whole amount.
    The defendant moved for a new trial upon the grounds:
    1. That the court erred in permitting proof to be given of the handwriting of the subscribing witness,to the assignment, without a subpena having been issued for such witness, and returned not found.
    2. That the court erred in permitting the notes to go in evidence to the jury, without proof of the handwriting of the assignor.
    3. That no proof being given that the notes, after the assignment, were delivered to the plaintiff by the assignor, the verdict was against the charge of the court on that point, and against evidence.
    The consideration and decision of this motion was adjourned to this court.
    Bond, in support of the motion:
    It is not known that any particular practice has been established, in this state, as to what steps the party must take to entitle him to give evidence of the handwriting of a subscribing witness. The best and safest would seem to be a requisition that a subpena should be put in the hands of *the sheriff, a reasonable time before the court.. When that is returned that the witness can not be found, it furnishes a ground for bolief that the witness is not within reach of the process of the court.

      It has been decided that a note may be given in evidence upon proof of the handwriting of the subscribing-witness, without proof of the handwriting of the maker. These decisions in other countries ought not to conclude this court, and we claim that upon principle it is much safer to rely upon proof of the handwriting of the maker. It is the next best proof. The subscribing witness is the best proof, because we expect from him some account of the transaction, and the omission to produce him, if unaccounted for, involves a suspicion, that, if produced, his testimony would be unfavorable.
    It is a serious objection to the rule declaring the proof of the handwriting of the subscribing witness sufficient, that it puts the party in a better situation, to practice fraud, to have the witness absent. If the witness were present, and could say no more than that he recognized the handwriting, the case would not stand as strong as upon proof, in his absence, of the handwriting; for that proof involves the inference, that, if present, he would prove the execution.
    There was no proof of the delivery of the larger note after the assignment; the proof was full that it remained in the hand of the assignor until after his death. The jury have disregarded the opinion of the court as to the law, expressly given them in charge. For this reason there ought to be a new trial.
    Sill and Leonard, on the other side:
    It is only one mode of proving a witness out of the jurisdiction of the court, to issue a subpena and have the return “not found,” indorsed upon it. It is sufficient in the absence of other, and more positive proof, but can not be made to exclude that proof.
    The principle is well settled, that where a subscribing witness resides abroad, the proof of his handwriting is sufficient proof of the execution of the note to let it go to the jury. 1 Bos. & Pul. 360; 2 East, 183, 250; Sel. N. P. 562, *note 7; 1 Johns. Cas. 230; 3 Johns. 477; 4 Johns. 461; 1 Hay. 20, 238; 2 Hay. 404; 5 Cranch, 13, in note.
    There were circumstances which warranted the jury in believing that the note had been delivered after the assignment. Besides, this is a question between the executors and the plaintiff; as they have not contested it, the defendant has no right to do it. The note came to the hands of the executors indorsed — they delivered it to the plaintiff. This was in completion of the original contract, and was a sufficient delivery. We think this decisive of the case.
   By the Court :

The place where a person, who has subscribed any instrument of writing as a witness, may reside, is a matter of fact, existing in parol and consequently capable of proof in different modes. The knowledge of a witness examined in court, is, at least equal to any other mode of proof. The fact of a subpena being sued out and put in the sheriff’s hands, and returned by him “ not found,” can not be higher proof than that of a witness who testifies to his own knowledge of the residence of the person. The one can, upon no principle, be held a pre-requisite to the admission of the other. The court were correct in admitting the testimony as to the residence. The authorities cited show conclusively that where the subscribing witness resides out of the jurisdiction of the court, proof of his handwriting is prima facie proof of the execution of the instrument subscribed. If we examine the question, upon principle,, we shall find no sufficient reason for departing from the rule as settled elsewhere.

The question is, where the subscribing witness to an instrument is dead or absent, what is the proper secondary evidence to prove the execution of the instrument? The production of the subscribing witness is the best evidence. Where this can not be obtained, the secondary evidence, which is substituted for it, ought to be the nearest and most similar to it, in its character and circumstances. The proof of the handwriting of the witness is, quasi bringing him into court, and the legal presumption arising *upon this proof is, that the parties called him to attest the execution and delivery of the instrument. It proves as much as the subscribing witness can prove himself, in many eases. Frequently he can do no more than recognize his own handwriting, being unable to recollect anything of the transaction. In such case his testimony that the attestation is in his handwriting, and must have been made by him, is sufficient. The proof of the handwriting proves as much; its nature and effect ought therefore to be the same.

When the subscribing witness is dead or absent, the court have usually admitted proof of the handwriting of the obligor, but it does not follow that this proof must be required in addition to proof of the handwriting of the witness, nor is the exclusion of proof of the handwriting of the witness a necessary consequence of admit ting the one, where the other can not be obtained. Under proper circumstances, both modes of proof may be admissible, and either may be sufficient.

The jury were charged, that without proof that the large note, after the assignment, was delivered by the assignor to the assignee, or some person for his use, the plaintiff was not entitled to recover. Of this there was no proof; on the contrary, it was found among the papers of the assignor after his death.

The plaintiff’s counsel insist that the delivery, by the executors, was a sufficient delivery, to vest the right of property and of action in the plaintiff. But we do not think so. The assignment made by the assignor while the note remained in his possession, and where no contract of sale was proved, was a mere nullity. It was in his own power, and could at any time be legally erased. It gave no interest or title to the assignee, and when Pierce died he was the absolute owner of the note, notwithstanding the assignment. The right vested, by his death, in the executors, and could only be assigned by them. The plaintiff acquired no more right by a delivery, from the hands of the executors, than he could have acquired had they delivered him a note, payable to the testator without any indorsement. The charge of *the court on this point was correct, and the finding of the, jury is against both law and evidence.

New trial upon payment of costs.

      Note by the Editok. — See cases cited in the note to the case on page 13 of ii.


text:
    Austin and Taylor v. Williams, Chase, and Gardener.
    Evidence that a sale of goods to C. was made upon an understanding that W. was his partner, and upon the credit of W., is admissible against W., but not available without other proof of partnership.
    Where a partnership have assumed no name, one partner may bind the other by contracting in the name of himself and company.

      Proof of usage and custom of merchants may be admitted, but the opinions of -witnesses are not admissible.
    This cause was adjourned from the Supreme Court of Hamilton county, and came before the court upon a motion for a new trial.
    The plaintiffs lived in the city of New York, and the suit was brought upon a promissory note, subscribed William Chase & Co. This note was executed by William Chase only, and in everything preliminary to the trial, stood exactly upon the same grounds as the case of Aspinwall v. Williams and others, reported Yol. I., p. 84. The parties defendants .being the same, and the foundation of the partnership the same as in that case.
    At the trial of this case the defendants objected to evidence being given by the plaintiff, that the plaintiffs understood, from letters in the possession of Chase, written not by the other defendants, but by third persons, at the time they sold the goods, for which the note was given, that Williams, the defendant, was a member of the firm. But the court overruled the objection, and permitted the evidence to go to the jury.
    The defendant also objected to the article of agreement, between Chase, Williams and Gardner, going to the jury, as evidence of the existence of the firm of William Chase & Co.,- whereon to charge the defendant, Williams, but the court overruled the objection, and the article was given in evidence to the jury.
    The defendant introduced witnesses to prove, that, according to the law merchant, a partnership created, without taking a name, could only make contracts in the name of all the members of the firm, and that, according to the law merchant, the partnership, claimed to have been .created in this case, having taken no name, the note subscribed William *Chase & Co. could not bind Williams and Gardener.
    The witnesses examined testified that they knew of no established rule or custom, but expressed their own opinions, that, in the case stated, the note should only bind Chase, who executed, as it was admitted that the goods, for which it was given, never came to the hands or use of the other defendants. The plaintiff objected that the testimony was irrelevant, and the court overruled it. The court also instructed the jury that the article of agreement constituted a partnership from the commencement, according to the decision in the case of Aspinwall v. Williams and others, before referred to. •
    The jury found a verdict for the plaintiffs, and the defendants moved the court for a new trial, upon the ground that the court erred in ruling all the points before stated. The decision upon this motion was adjourned here.
    Gazlay, in support of the motion:
    Whether the defendant was a member of the firm of William Chase & Co. was a fact which could only be proved by the articles of agreement, or by persons who knew the fact, from being present at the formation of the partnership, or by the acknowledgments of the defendants to be charged. The fact that it was so understood by the plaintiffs, or others in New York, was not admissible évidence; because not founded upon knowledge, but upon hearsay.
    The article of agreement ought not to have been admitted in evidence; it contained stipulations for a partnership between the defendants, but it recognized no such - firm as that of William Chase & Co., unless it be a legal deduction, that when persons asso-. elate for a particular purpose, and take no name, any one of them, without the consent or knowledge of the others, may assume a name and bind the others by it.
    This is denied to be law. It is a principle, as applicable to partnerships as to other contracts, that no person can be bound by an agreement, but with his own consent, expressed by the means and in the mode he has authorized. The law is supposed to be well set-tied, that a partner in ^-making a note to bind the firm, must sign the name of the firm, or the individual names of the members. Chitty on Bills, edition 1821, p. 52, 53; 1 Salk. 126; Doug. 653. It has even been decided, that when a note appears on the face of it to be the separate note of A., it can not be declared on as the joint note of A. and B., though given to secure a debt for which both were liable. 15 East, 7. [On this point Mr. G-azlay made an elaborate argument, contesting the correctness of the decision in Aspinwall v. Williams and others, as to the commencement of the partnership, which it is deemed unnecessary to report.]
    The evidence of merchants, as to the usage and custom, in cases where no name is assumed in the articles of copartnership, and in what manner writings should be sighed to bind the partnership, ought to have been received. Chitty on Bills, edition 1821, p. 49; Doug. 653. The case in Douglas was this: Two persons, not partners, drew a joint bill, payable to their order; one of them only indorsed it, and the indorsee brought an action against both. The question was, whether the indorsement of one was a sufficient transfer to vest the interest in the indorsee. At the trial, Lord Mansfield nonsuited the plaintiff, conceiving that the interest could only pass by the indorsement of both. But, upon a motion for a new trial, the court were unanimously of opinion, that the indorsement was sufficient, and a new trial was granted.
    Upon the second trial the defendants offered evidence that, by the universal understanding and usage of all the bankers and merchants in London, the indorsement was bad, because not signed by both payees. The evidence was objected to, but admitted, and a verdict found for the defendants. This decision is supposed to be a full authority for admitting the evidence offered, in the case at bar.
    No argument was submitted on the other side.
   By the Court :

The evidence that the plaintiffs understood the defendant to be a partner at the time the credit was given, was not offered or admitted to prove the partnership, '[but to, prove that credit was, in fact, given to the defendant Williams. *For this purpose it was clearly admissible. Whether the conduct of the defendant had been such as to authorize this understanding, was a distinct fact, to be proved by other testimony, without which the plaintiff could not recover.

In the case of Aspinwall v. Williams and others, 1 Ohio, 84, this court decided, upon full deliberation, that the agreement between the defendants constituted an immediate partnership; and to that opinion they still adhere. In that ease, too, they adjudged that the note subscribed William Chase & Co. bound the partnership. This opinion is not shaken by the authorities and arguments now urged for the defendant. The rule laid down in Chitty, and upon which the defendant relies, is thus stated: “ Whenever a person draws, accepts, or indorses a bill for himself and partner, he should always express that he does so for himself and partner, or subscribe both the names, or the names of the firm, and that otherwise it will not bind the partner.” This rule is broader than the defendants’ counsel admits. Although neither the individual names of the partners, nor the name of the firm is used, still the partner may be bound if the party signing express that he does so for himself and. partner. There is no set form of words in which this expression should be made; and, where the firm have assumed no name, as in this case, the signing, William Chase & Co. is a clear and sufficient expression, that the note was given for the drawer and his partners, and must bind the firm.

The evidence offered by the defendant of a usage and custom of merchants was overruled, after it was given, because it did not go to establish any such usage or custom as was set up. The witnesses testified only as to their own opinions. A universal usage and understanding among merchants, as in the ease cited from Douglas, is very different from the mere opinions of witnesses, and upon this distinction the testimony was properly overruled. The motion for a new trial must be overruled, and judgment entered on the verdict,

      HoTE by the Editor. — That a partner can not bind a copartner by a bond under seal, see vii. 175, part 2; xi. 223. Power of a partner to bind his copartners generally, see i. 84; iii. 425; v. 514; xiii. 300; xiv. 58, 592. As to what constitutes, and what evidence will establish a partnership, see i. 84; xvi. 166. Eor a late case touching evidence to support a usage or custom, sea xvi. 421.


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    *Peter and J. Crary v. Same Defendants.
    The only distinction between this case and the foregoing one, was, in this no note was given, but the goods sold were charged and invoiced to William Chase & Co. The court held that this circumstance did not vary the case.
    Same order and judgment.