White v. Philbrick

• Decision Date: 01 June 1827
• Citation: 5 Me. 147
• Parties: WHITE v. PHILBRICK
• Court: Maine Supreme Court

5 Me. 147

WHITE v. PHILBRICK

Supreme Judicial Court of Maine, Somerset

June, 1827

TRESPASS de bonis asportatis. The defendant, who was a coroner, had seized the goods in execution at the suit of one Benjamin Adams against one Levi Barrett; for which taking the plaintiff brought trover against Adams, and had judgment and execution. But not being able to obtain satisfaction against Adams, who had absconded, the plaintiff afterwards brought this action of trespass against the coroner for the original taking. And upon these facts, the question whether this action was maintainable, was referred to the decision of the court.

Plaintiff nonsuit.

Boutelle for the plaintiff, contended that the former judgment against Adams, for the value of the goods, was no bar to this action it not having been satisfied. Before the case of Broome v. Wooton, Yelv. 67; Cro. Jac. 73, the law to this effect was well settled; and the authorities collected by the learned editor of the late edition of Yelverton, clearly show that the text of that case is not law. The judgment is only a security for the original debt, or cause of action. It is payment or satisfaction, and that alone, which changes the property. Solutio pretii emptionis loco habetur. If it were not so, then an accord, by one of several trespassers, without satisfaction, would be a good bar; contrary to all authority. Bro. Abr. Judgment, 98. Livingston v. Bishop, 1 Johns. 290. Campbell v. Phelps, 1 Pick. 62. Rawson v. Turner, 4 Johns. 469. Drake v. Mitchell, 3 East, 252.

Allen, for the defendant, relied on the authority of Broome v. Wooton, Yelv. 67, as conclusive in his favor; and said that the cases collected in the note by Mr. Metcalf, went to show, not that the judgment in that case could not be supported, but that the reasons given for it were unsound. In Livingston v. Bishop, it is said that to constitute a perfect bar, an execution must be sued out; which may be considered as an election de melioribus damnis; and such was the fact here. And the rule, that in trespass or trover for taking goods, a judgment for the plaintiff ipso facto changes the property, is founded in good reason; since otherwise one party might retain the goods, and another, however morally innocent, be compelled to pay their value.

OPINION

WESTON, J., delivered the opinion of the court in Cumberland, at May term, 1828.

In regard to the principal question presented in this case there is great want of clearness in the authorities. According to the case of Brown, or Broome v. Wooton, cited from Yelverton, the former judgment in trover by the plaintiff against Adams, execution being sued out thereon, although without satisfaction, is a good bar to the action. The reason for this decision, as there reported, is, that what was before uncertain, is by the judgment made certain; transit in rem judicatam; and so altered and changed into another nature than it was at first. Mr. Metcalf, the learned editor of Yelverton, in his note upon this authority, says, that he finds no case in which the point therein decided has been otherwise adjudged; but he shows very satisfactorily that the reason assigned, namely, uncertain damages having become certain by the first judgment, is not supported by the authorities. And there is as little foundation for the opinion, that merely because the original cause of action had passed into a judgment against one of the parties liable, no collateral remedies for the same cause could be pursued against others, who were also liable. In the case of joint and several obligors and promisors, against whom it is a very common practice to bring several actions, it never was pretended that a judgment in one was a bar to another. The case cited, is reported in Cro. Jac. 73, where the reason assigned by Fenner, J., is, that in the case of trespass, after the judgment given, the property of the goods is changed, so as he may not seize them again. Mr. Metcalf admits that if this principle be correct, the decision may be supported on that ground. In Adam v. Broughton, 2 Strange 278, the court decided that a recovery in trover against one vested the property in him, although he had obtained an injunction on the judgment; so that the plaintiff could not, in the second action, say that the goods were his. Chitty, in his treatise on pleading, 1 Chitty, 76, says, a recovery against one of several parties to a joint tort, frequently precludes the plaintiff from proceeding against any other party, not included in such action. And he cites Broome v. Wooton in support of this position. It is laid down in 3 Dane, c. 77, art. 1, § 2, that when the plaintiff recovers damages in trover, for the value of the goods, the property of them vests in the defendant. So far as a change of property, consequent upon the judgment, constitutes a good defence to a second action against another party, it is limited to actions of trover, and of trespass, de bonis asportatis, and does not apply to other actions of trespass. Parker, C. J., in the case of Campbell v. Phelps, cited in the argument, appears to admit 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. And he founds his opinion upon the principle, that payment of the value, and not the judgment, is that which operates a transfer of the property; and this upon the maxim, solutio pretii emptionis loco habetur. The party injured has unquestionably a right to retake his goods peaceably at any time before...