the property in the chattel in dispute, or bar a subsequent action against the other for continuing to detain it.214 "It would be an absurdity," says Mr. Justice Willes, 215 "that the mere obtaining judgment, especially for nominal damages, could vest property, of which the plaintiff had been deprived, in defendant." On the same principle, judgment for a payment of nominal damages, by a patentee, without joining his licensee, against one who has made and sold a machine in violation of the patent, is no bar to a bill in equity, by the patentee and licensee together, for the benefit of the licensee, against another person for afterwards using the same machine.2 216 SAME-RELEASE. 117. A release of one joint tort feasor does not release the others. But the injured person is entitled to only one satisfaction. If he receives that from one tort feasor, he cannot sue other joint tort feasors. Wherever the person injured by the wrong of several joint tort feasors has settled his claim for damages, and received satisfaction, from one of them, the cause of action is discharged as to all. While separate suits, as has been seen,217 may be brought against several defendants for a joint trespass, and while there may be recovery against each, there can be but one satisfaction. It is immaterial whether the satisfaction is obtained after judg ment,218 or by amicable adjustment, without any litigation, of the claim for damages. The essential thing is the satisfaction.21 219 214 Morris v. Robinson, 5 Dowl. & R. 34-48, 3 Barn. & C. 196-206; Ex parte. Drake, 5 Ch. Div. 866. 215 Brinsmead v. Harrison, L. R. 6 C. P. 584-588. 216 Birdsell v. Shaliol, 112 U. S. 485, 5 Sup. Ct. 244; Consolidated RollerMill Co. v. Coombs, 39 Fed. S03-806; Kelly v. Ypsilanti Dress-Stay Manuf'g Co., 44 Fed. 19-21; Campbell Printing-Press & Manuf'g Co. v. Manhattan Ry. Co., 49 Fed. 930; Hobbie v. Jennison, 149 U. S. 355-363, 13 Sup. Ct. 879. 217 Livingston v. Bishop, 1 Johns. 290. 218 Ante, pp. 341-343, "Discharge by Judgment"; Co. Litt. § 376. 219 Babcock & Wilcox Co. v. Pioneer Iron Works, 34 Fed. 338; Eastman v. Grant, 34 Vt. 387. Therefore, where a passenger, injured in a street-car collision, for a sum paid released the carrier company from all liability for the injury, he thereby discharged the liability of the other company also. The rule was applied notwithstanding evidence that the other company was really to blame, and although the right of action against it was expressly reserved.220 The reasoning of the English cases is that the cause of action against joint tort feasors is one and indivisible, and, having been released as to one person consequently is released as to all persons otherwise liable. The American cases recognize only satisfaction as a bar to suit against joint tort feasors. When the cause of action is once satisfied, it ceases to exist.221 Where, however, there is a wrong in which several persons join without concert, the release of one is not the release of all. They are not, strictly speaking, joint tort feasors.222 Therefore, a release of one of two coal-mine owners, both of whom had thrown refuse into a stream, is not a release of the other.223 A covenant not to sue may not amount to a release.224 Thus, while a release of one of several joint and several debtors is a discharge of all,225 a covenant not to sue is not so, in general. The 226 220 Seither v. Philadelphia Traction Co., 125 Pa. St. 397, 17 Atl. 338. A similar case is Tompkins v. Railroad Co., 66 Cal. 165, 4 Pac. 1165. Et vide Spurr v. Railroad Co., 56 N. J. Law, 346, 28 Atl. 582; Cooke v. Jennor, 5 Hob. 66; Brinsmead v. Harrison, L. R. 7 C. P. 547; Kentucky & I. Bridge Co. v. Hall, 125 Ind. 220, 25 N. E. 219; City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271; Horsley v. Moss, 5 Tex. Civ. App. 341, 23 S. W. 1115. 221 Spurr v. Railroad Co., 56 N. J. Law, 346, 28 Atl. 582. Cf. Derosa v. Hamilton, 14 Pa. Co. Ct. R. 307. 222 Ante, p. 212, "Joint Tort Feasors." 223 Little Schuylkill, N. R. & C. Co. v. Richards' Adm'r, 57 Pa. St. 142; Gallagher v. Kemmerer, 144 Pa. St. 509, 22 Atl. 970. 224 2 W. Saund. 47-99, note; Ford v. Beech, 11 Q. B. 852. The dismissal of an action against one of two joint tort feasors, together with the execution, for a valuable consideration, of an agreement not to sue him, does not operate as a release of the other tort feasor. City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271. 225 Co. Litt. 232; Cocks v. Nash, 9 Bing. 341; Nicholson v. Revill, 4 Adol. & E. 675; Brooks v. Stuart, 9 Adol. & E. 854. 226 Dean v. Newhall, 8 Term R. 168; Twopenny v. Young, 3 Barn. & C. 208; Hutton v. Eyre, 6 Taunt. 289; Duck v. Mayeu [1892] 2 Q. B. 511; Sharpe v. Williams, 41 Kan. 56, 20 Pac. 497; City of Chicago v. Babcock, supra. But see Comstock v. Hopkins, 61 Hun, 189, 15 N. Y. Supp. 908. And see same distinction is applied to joint tort feasors. A covenant not to sue one of two joint tort feasors does not operate as a release of the other from liability.227 SAME-WAIVER. 118. In England, waiver of the tort as to one of several joint tort feasors, and suit against him in assump sit, releases the other tort feasors. rule is otherwise. In America, the In Buckland v. Johnson228 the plaintiff recovered judgment in trover against one of two joint tort feasors for conversion of property. Not being able to realize on his judgment, he sued the other tort feasor for money had and received. It was held that the 'former judgment was a bar to the latter proceeding. This is consistent with the English rule as to the effect of a judgment against one of several tort feasors upon a subsequent action against the others. The rule on this point being otherwise in America, it was properly said in Huffman v. Hughlett229 (where an original action Whittemore v. Oil Co., 124 N. Y. 565, 27 N. E. 244. As to the rule of construction, determining whether a document be a release, or a covenant not to sue, see Price v. Barker, 4 El. & Bl. 760-777; Bateson v. Gosling, L. R. 7 C. P. 9. 227 Duck v. Mayeu [1892] 2 Q. B. 511. Dismissal of an action against one or more joint tort feasors, together with the execution, for a valuable consideration, of an agreement not to sue him, does not operate as a release of the other tort feasor. City of Chicago v. Babcock, 143 Ill. 358, 32 N. E. 271. 228 Buckland v. Johnson, 15 C. B. 145. Mr. Keener (Quasi Contracts, 209) points out a further inconsistency of the law in this case with American doctrines, in that it was here taken for granted that by the judgment the title was invested in the defendant in the first action as of the time of the conversion. The rule is otherwise in America. Dow v. King, 52 Ark. 282, 12 S. W. 577; Atwater v. Tupper, 45 Conn. 144; United Soc. v. Underwood, 11 Bush (Ky.) 265. Cf. Floyd v. Brown, 1 Rawle 229 Huffman v. Hughlett, 11 Lea (Tenn.) 549. (Pa.) 121. Terry v. Munger, 121 N. Y. 161, 24 out, was decided by an unjustifiable use of the fiction in assumpsit. It has, however, been cited with approval. Crossman v. Rubber Co., 127 N. Y. 34– 37, 27 N. E. 400; Roberge v. Winne, 144 N. Y. 709-712, 39 N. E. 631. In had been brought in assumpsit against one tort feasor, and discontinued, and subsequently an action in conversion was brought against another tort feasor): "If the action be in contract, it is not strictly a waiver of the tort, for the tort is the very foundation of the action; but, as Nicholson, C. J., has more accurately expressed it, a waiver of the 'damages for the conversion,' and a suing for the value of the property.230 It is simply an election between remedies for an act done, leaving the rights of the injured party against the wrongdoer unimpaired, until he has obtained legal satisfaction. If it were otherwise, the suing of any one of a series of tort feasors, even the last, on an implied promise, where there was clearly no contract, would give him a good title and release all the others. No authority has been produced sustaining such a conclusion, and we are not inclined to make one." both these cases it is regarded as having decided that the plaintiff in Terry v. Munger had elected to resort to another and inconsistent remedy, and was therefore bound to that election. It was distinguished in Russell v. McCall, 141 N. Y. 437, 36 N. E. 498, as being a case where the owner of property had elected to treat its conversion as a sale, commenced his action, and was accordingly bound. It was insisted that there was an inconsistency between such election and a subsequent suit. In this case it was distinctly held that where a surviving partner misappropriated the assets of the firm, the legal title to which came to him, not as the full and absolute owner, but charged with trusts, and an equitable action has been brought against him by the personal representatives of the estate of the deceased partner, and a judgment obtained therein for an accounting and payment of the amount found due the estate, this, unless the amount so found due is paid, is not a bar to an action against the others, who, by intermeddling with the assets and sharing in the misappropriation, have rendered themselves liable therefor, as trustees de son tort. Until satisfaction of the judgment, it gives the surviving partner no greater rights over the assets than he had before its rendition. 230 Kirkman v. Phillips, 7 Heisk. 222-224. 120. Whenever a statute creates a right, a duty, or an obligation, then, although it has not in express terms given a remedy, the remedy which by law is properly applicable to the right or obligation follows as an incident.1 2 Mr. Cooley has stated, as between common-law and statutory remedies, three principles: (1) Where a remedy exists at the common law, and a new remedy is given by statute, and there are no negative words in the statute indicating that the new remedy is to be exclusive, the presumption is that it was meant to be cumulative; and the party injured may pursue, at his option, either the common-law remedy or the remedy given by the statute. For example, the common law gives to one whose property is seized on an attachment sued out 1 Maule, B., in Braithwaite v. Skinner, 5 Mees. & W. 313. 2 Cooley, Torts, pp. 781-783. 3 Cooley, Torts, p. 781, and cases cited in note. This is an application of the general principle that, "if there are concurring effectual remedies, the choice and uninterrupted prosecution of the one excludes the other." Hack |