the amendment. This decision concludes the other two motions; they must of course be overruled.

WRIGHT v. LATHROP.

A verdict and judgment against one joint trespasser, cannot be pleaded in bar to a separate action for the same trepass, against another joint trespasser.

This was an action of trespass, with force and arms, for taking and convert. ing 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. Wright, for defendant.

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 been often discussed. In Bird v. Randall, (3 Burr, 1345) 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 als. (3 East's Rep. 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 cannot operate to change any other collateral concurrent remedy, which the party may have."

That each joint trespasser is answerable for the act of all, and that the plaintiff may pursue his remedy against one or all, is unquestioned. 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 satisfac. tion. 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 plain

tiff 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 bar to 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. Heydon'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 als. (1 John. Rep. 290) chief justice Kent, speaking of the case of Brown v. Wooten, says it was 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 melirribus 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. and Mumf. 488. 2 Hen. and Mumf. 355.)

The Supreme Court of New York, in Livingston v. Bishop et al. (1 John. Rep. 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 insufficient, and the demurrer thereto sustained.

LESSE OF JOHNSTON v. HAINES.

Where the person taking an acknowledgment of a deed, gives himself no official character in his certificate or subscription, the acknowledgment is insufficient, and the record of the dee! irregular. The copy of such a deed duly certified is not admissible in evidence.

Quere, if the original instrument had been produced whether evidence can be received that the person taking the acknowledgment was a justice. Such proof is inadmissible where a copy only 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 tak ing 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 acknowl. edgment. The deed and evidence were both rejected, and the plaintiff was nonA 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.

suit.

Leonard, for the plaintiff. Atkinson, for defendant.

By the COURT.

When a copy of a deed, certified by the recorder, is offered in evidence, in. stead 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 o Ecer, 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 cannot be received as evidence.

Proof, distinct from the certificate upon which the record was made, that the person who took 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 cannot be received. The record being irregular, the original is not proved, and until that is done a copy cannot be used. The court decided correctly in rejecting the testimony, and the motion for a new trial must be overruled.

CLARK v. BOYD.

Where there is other proof that a subscribing witness to a writing resides out of the jurisdiction of he court, it is not necessary to take out a subp œna and have a return of not found.

Where the subscribing witness resides out of the jurisdiction of the court, proof of his hand writing is prima facie evidence of the execution of the instrument.

A note assigned and the note retained in the hands of the assignor until his death, vests no interest in the assignee.

This action was brought by the plaintiff as assignee of Philip Peirce, 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 Peirce. The defendant pleaded non est factum, without affidavit, and gave notice of pay.

ment.

At the trial before the Supreme Court in Highland county, to prove the execution of the assignment endorsed upon the note, the plaintiff introduced a witness to prove the hand writing of the subscribing witness to the assignment, accompanied with proof that he resided in Pennsylvania. No subpœna 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 hand writing 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 hand writing 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 Peirce, the assignor of the note, had been sometime deceased, and that, at the time of his death, the note for 280 dollars was found among his papers, endorsed by him to the plaintiff. That the executors, supposing it to be the property of Clark, had not inventoried it as part of the assetts of Peirce, 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 hand writing of the subscribing witness to the assignment, without a subpœna 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 hand writing of the assignor.

3. That, no proof being given that the notes, after the assignment, were deliver

ed 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. Sill and Leonard, contra.

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 subpoena being sued out and put in the sheriff's hands, and returned by him "not found," cannot 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 hand writing is deemed 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 cannot 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 hand writing 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 cases. Frequently he can by no more than recognise his own hand writing, being unable to recol. lect any thing of the transaction. In such case his testimony that the attestation is in his hand writing, and must have been made by him, is sufficient. The proof of the hand writing 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 hand writing of the obligor, but it does not follow, that this proof must be required, in addition to proof of the hand writing of the witness, nor is the exclusion of proof of the hand writing of the witness a necessary consequence of admitting the one, where the other cannot 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 asignee, 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 a right of property and of action in the plaintiff. But we do not think so. The assignment made by the assignor, while the note remain