Floyd v. Browne

• Decision Date: 12 January 1829
• Citation: 1 Rawle 121,18 Am.Dec. 602
• Parties: FLOYD v. BROWNE, Administrator of TRUXTON.
• Court: Pennsylvania Supreme Court

1 Rawle 121

18 Am.Dec. 602

FLOYD v. BROWNE, Administrator of TRUXTON.

Supreme Court of Pennsylvania.

January 12, 1829

IN ERROR.

By recovering a judgment in trespass for carrying away the plaintiff's goods, his property in the goods is divested. Consequently, such a judgment is a bar to an action of indebitatus assumpsit, against any one, for the proceeds of the sale of the goods which were the subject of the trespass.

FROM the record of this case, returned on a writ of error to the District Court for the city and county of Philadelphia, it appeared, that in the court below it was an action of assumpsit for money had and received brought by the plaintiff in error, John Floyd, against the defendant in error, Aquilla A. Browne, administrator de bonis non cum testamento annexo of Thomas Truxton, deceased, who, in his lifetime was High Sheriff of the city and county of Philadelphia.

The following were the circumstances upon which the plaintiff's claim was founded: To March Term 1819, of the District Court, Caleb Cridland issued a Fieri Facias against a certain George Green. The sheriff levied upon goods belonging to the plaintiff, (Floyd, ) and sold them for the gross sum of twelve hundred and thirty-five dollars and ninety-four cents. In making the levy, Benjamin Cridland, Robert Black, Peter Care, jr., Stephen E. Fotterall, and George F. Alberti, assisted the said Caleb Cridland. Floyd brought an action of trespass vi et armis, against Benjamin Cridland, and the others who assisted him in the levy, and obtained a verdict and judgment for two thousand dollars against Caleb and Benjamin Cridland, and signed judgment by default against Robert Black, Peter Care, jr., Stephen E Fotterall, and George F. Alberti, the other defendants. Execution was issued against all these defendants, and the money made out of the goods and chattels of Fotterall. Fotterall removed the record by writ of error to the Supreme Court, where, on the 2nd of April, 1821, the judgment was reversed as to all the defendants except Caleb and Benjamin Cridland, and the execution as to all. (See 6 Serg. & Rawle, 412.) On the 19th of May, 1821, Floyd brought this action against the sheriff, to recover the proceeds of the sale of his goods wrongfully taken in execution. The defendant pleaded non assumpsit and payment, and a special plea of former recovery, which set forth the proceedings in the District Court and Supreme Court, above stated, in the suit brought by Floyd against Caleb Cridland and others. To this plea the plaintiff demurred, and the court below gave judgment for the defendant on the demurrer. The plaintiff thereupon took out a writ of error.

J. R. Ingersoll and P. A. Browne, for the plaintiff in error.

The question is, whether a plaintiff who has brought an action of trespass against certain individuals, for taking away his goods, and who has obtained judgment against them, but no satisfaction, can in an action for money had and received recover from the sheriff, the proceeds of the sale of those very goods which have been tortiously taken from him? A man does not make the goods of another his own by wrongfully taking them, nor does a man lose his title to property, by being illegally dispossessed of it. The commission of a trespass does not change the property. The owner may, indeed, waive the tort, and proceed as if it were a contract. Hence in trover, in which a fair finding is alleged, and not a tortious taking, a recovery of judgment vests the ownership of the goods in the defendant, and substitutes for them damages which are measured by their value. Bull. N. P. 32. But a judgment in trespass or larceny leaves the property unchanged, and it may be pursued into the hands of any one to whom it can be traced. There are cases in which a failure to prove property in one form of action is a bar to setting the same property in another form. But there is no case to show that succeeding in the proof of property in one form, must induce a failure in a similar attempt in another form. In Kitchen et al v. Campbell, 3 Wils. 304, 2 W. Black. R. 779, S. C., judgment was given for the defendant, because in a previous action of trover for the same goods, the plaintiff had failed. If replevin and trespass, which are both actions of tort, are brought together, the rule is, not that a recovery in one, will bar a recovery in the other, but that the pendency of one will prevent the further prosecution of the other.

Though in some cases a recovery in trespass is a bar to another recovery for the same trespass, yet there is no case in which a recovery in trespass is a bar to an action of assumpsit. It is an important feature of this case, that the sheriff was no party to the trespass. The plea does not allege that he was, and the fact was otherwise. He neither was, nor could be a party to the action, which was trespass quare clausum fregit. The sheriff never entered the plaintiff's close. He found the goods elsewhere, and sold them as he found them. All that the plea alleges is, that the judgment so recovered formerly, was for the same cause of action as that in which the defendant is now impleaded. This is true, so far as the identity of the goods goes, and so far as the defendant may have been an acessory after the fact to the trespass. Beyond these points they cannot be identified. It is precisely as if the plaintiff had traced his goods into the hands of a bailee or a stranger, or rather as if he had traced his money into the hands of a stranger, and then demanded it.

Two positions may be maintained: 1. There is nothing in this case to prevent a recovery from a joint trespasser, even in trespass. 2. Multo fortiori, there is nothing to prevent a recovery in assumpsit.

1. To bar a second action of trespass for the same joint act, there must have been either very satisfaction, accepted as such, or at least a valid execution, which, if not actually available, must have had its course without let or impediment from the law, the court or the party defendant. This principle is deducible from the earliest authorities, as well as from those of modern date. 14 Vin. Ab. 612. Judgment (T. ) pl. 2. Id. 607. Judgment (P. ) pl. 1, 2. 20 Vin. Ab. 540. Trespass, (R. ) 11. Broome v. Wooton, Yelv. 67. Cro. Jac. 73, S. C. Coke v. Jenner, Hob. 66. Cro. Ch. 75. Claxton v. Smith, 3 Mod. 86. 2 Show. 484. Bull. N.C. P. 49. Sparry's Case, 5 Co. 61. Ferrer's Case, 6 Co. 7. Cro. El. 667. Felter v. Beale, 1 Salk. 11. Fields v. Law, 2 Root, 320. Livingston v. Bishop, 1 Johns. R. 290. Knox v. Work, 1 Browne, 101.

If the plaintiff may proceed against several trespassers until he has received satisfaction, it is difficult to imagine any principle which could stand in the way of a proceeding against a stranger who has received his money arising out of the very goods which were the subject of the trespass, and who, therefore, does not even stand in the situation of a co-trespasser. That an execution issued in this case, amounts to nothing. It was reversed and made void, ab initio. Cridland v. Floyd, 6 Serg. & Rawle, 412. It could not be construed into an election; and if it could when it first issued, yet having been avoided, it was unavailing, and, consequently, no election either in fact or law. Parsons v. Lloyd, 3 Wils. 345. Read v. Markle, 3 Johns. 523. Patterson v. Swan, 9 Serg. & Rawle, 16.

J. Randall, for the defendant in error.

The defendant has long since paid away the money to the plaintiff in the execution under which it was raised, and an experiment is now made by a third person to recover that amount in an action of indebitatus assumpsit. No such action was ever brought before in any court. That the recovery of a judgment in trespass is a bar to any subsequent action, even without execution, is fully established. Broome v Wooton, Cro. Jac. 73. Yelv. 67. Bull. N. P. 20. Rawlinson v. Oriett, Carth. 96. Sparry's Case, 5 Co. 61. Ferrer's Case, 6 Co. 7. This rule is fully adopted in Virginia. Ammonett v. Harris, 1 Hen. & Munf. 488, 498. And in Kentucky, Ewing v. Foul, 1 Marsh. 457. The case of Livingston v. Bishop, 1 Johns. R. 290, stands alone against all these authorities. In reference to that case it is worthy of remark, that it did not come before the court in such a way as to give rise to the question; added to which, LIVINGSTON, J., and SPENCER, J., did not concur with the majority of the court. In the elementary treatises too, the principle is laid down, that a judgment in trespass, is a bar to another action for the same trespass. 1 Chitty on Pl. 76. Esp. on Evidence, 192. So far is it from being necessary even to issue execution, that in the books of precedent, the form of the plea is that the judgment remains unsatisfied. 2 Chitty on Pl. 437, 438. 3 Wentw. 143. Story Pl....