Floyd v. Browne

The opinion of the court was delivered fay' Gibson, C. J.—A plaintiff is riot compelled to elect between actions that are consistent with each other. Separate actions against a number who are severally liable for the. same thing, or against the same defendant on 'distinct securities for the same debt or duty, are consistent, being*concurrent remedies. Trespass' is,'in its na-"-, ture, joint and several; and in separate actions against joint tres- ] passers, being consistent with' each other, nothing :bút actual satis- I faction hy one will discharge the rest. So far the law is clear. / Here, then, the plaintiff had impleaded six jointly, and obtained -judgment, but without actual satisfaction, against two; and he now brings indebitatus assumpsit against a seventh for the price obtained for the goods which were the subject of the trespass.- The'. point.of defence mainly relied on, is that the plaintiff’s property in '< the goods, was divested by the former recovery; and consequently, ) that he cannot maintain an action founded exclusively on- property ^ in the goods, or the. price of them. It is not easy to see how this 4 is to be answered. It will not do to say that the present, though differing in form, is in substance an action to recover satisfaction for a trespass, and consequently,-that the form is immaterial.. There-, is, in fact, a- substantial difference. The cause .of action in trespass and in assumpsit,-is as distinct in substance, as the actions are different in form. Trespass lies only for an injury to the possession; and y damages are recoverable for the talcing, which is the gist of the action, separately from the value of the goods, the asportation béing a circumstance merely of aggravation. Assumpsit lies for money received as the price of the goods, to the plaintiff’s use, the detention of which, is the gist of the action, the trespass being waived, and not entering at all into the estimate of the damages; it being well settled, that nothing is recoverable beyond what was actually received. If thereowere no difference as to substance, and the form [126] of the remedy were immaterial, a plaintiff might have several actions of assumpsit against those who had jointly sold his goods, on the ground of their having been obtained by a trespass, although the promise which'the law implies from a joint receipt of the price, is also joint. He certainly might just as well proceed severally,in assumpsit against all, as in trespass against some, and in assumpsit against the rest. Bu.t there is this further substantial difference, that the action in tlie'One case,,is founded on a eonti’act which survives, and in the other, on a tort, which, at the common law, does not. In fact,, the attempt here is to make an. administrator liable. A y' plaintiff must proceed consistently. He cannot waive a part of the { injury to give form to, his action, and resume it to give substance, f" In waiving the trespass he dispenses with whatever could give chaI racter to the injury .as such,, and treats as a substantive and distinct 1 eau'se of action,' what' would,,'in an-action of trespass proper, be Vjmerely a circumstance of aggravation. In an action of assumpsit, therefore, he cannot claim the benefit pf any of the incidents or at-f tributes which appertain to an action of trespass. The consequence /'■ is, that the plaintiff here having recovered in trespass, cannot again recover iri an action which is not a concurrent remedy; a recovery in trespass producing-.the same bar that is produced by a recovery in trover, against a recovery in assumpsit of the price of the same ^.goods. Judgment affirmed, '