Karr v. Barstow

Catón, C. J. This was an action of trespass for taking and carrying away certain goods. The defendants pleaded that the plaintiff had previously brought an action of replevin against the defendant, Karr, for the same goods for the taking of which this action was brought, in which he recovered the goods taken, and five cents for their detention. To the second and third pleas setting up this defense, the court sustained a demurrer, which is now assigned for error. The principal upon which this demurrer is attempted to be sustained is, that a plea by several defendants must be good for all, and that a party may bring a separate action against each trespasser, and recover separate judgments against each, but that he can only collect one satisfaction. These principles are admitted, but they will not sustain this demurrer. The plaintiff did recover satisfaction in his action of replevin. He got his goods back, and whether he ever collected the five cents damages or not, is no matter. Suppose the first had been an action of trespass against Karr, in which he had recovered five thousand dollars and five cents damages, and he had realized the five thousand dollars but not the five cents, could he sue the other tort feasors, and recover ten thousand dollars more against them ? And yet he could do that, if this demurrer was well taken. The proposition will not bear argument. If he selected the form of action in which he was not entitled to recover vindictive damages, he must be content with the remedy which that form of action has afforded him. The pleas aver that he recovered all the goods taken. If his plaint did not go for all the goods taken by the defendants at the same time, that was his own folly. He could not sue in replevin for a part of the goods, and bring trespass for the balance taken, at the same time. If the officer could not find all the goods mentioned in the plaint, our statute authorized him to insert a count in trover for the balance, but there is nothing in this case to show that he did not get all the goods taken, and really the only complaint is, that the pleas do not show that he had recovered his five cents damages. We think the demurrer should have been overruled. The judgment must be reversed, and the cause remanded. Judgment reversed.