Lovejoy v. Murray
LOVEJOY brought suit in one of the courts of Iowa against O. H. Pratt, and the sheriff attached certain personal property, which was assumed to be the property of Pratt. A certain Murray, however, claimed it as his. The sheriff, now in possession, was unwilling to proceed further in the attachment, or to sell the property under it, unless indemnified by Lovejoy & Co. These parties accordingly executed a bond, in which, reciting that the sheriff had attached and taken possession of the property, they bound themselves to pay all damages, &c. The sheriff then proceeded to sell the property under Lovejoy & Co.'s attachment, and under direction of their attorneys.
This being done, Murray sued the sheriff for an alleged trespass. The sheriff gave notice of this suit, as soon as brought, to Lovejoy & Co., and they defendant it; counsel, whom they paid, having taken exclusive charge of it. In this suit, Murray obtained
Judgment against the sheriff for $6233
Which the sheriff, without execution issued, satisfied to the extent of 830
Leaving a balance unsatisfied of $5403
Murray then brought suit against Lovejoy & Co. for this same trespass; and the facts being agreed on in a case stated, the court gave judgment for the plaintiffs for the amount of the judgment against the sheriff less the $830 paid by him.
On error here from the Massachusetts Circuit (where Lovejoy & Co. had been sued), three questions were made.
1. Did Lovejoy & Co., in giving the bond of indemnity to the sheriff, become thereby liable as joint trespassers with him in what was done under the attachment?
2. Did Murray, by suing the sheriff alone, and getting partial satisfaction of the judgment against that officer, bar himself of a right to sue Lovejoy & Co. for the same trespass?
3. Was Murray's judgment against the sheriff conclusive against Lovejoy & Co. in this suit against them?
The case was thoroughly argued on both sides, in this court, on the authorities, ancient and modern, English and our own.
Mr. Hutchins, for Lovejoy & Co., plaintiffs in error.
On the first point, the effect of the bond of indemnity. One may indemnify an officer for an act committed by him, without being himself liable for that act. He may defend a suit against a trespasser without becoming himself a trespasser. 'It is sometimes said,' remarked Chief Justice Gibson, of Pennsylvania,  'that in levying an execution the sheriff is the plaintiff's agent. Having received a sufficient bond of indemnity, or a tender of it, he is certainly bound to follow his instructions; but the relation between them is not that of master and servant; for the sheriff is bound to act, not by force of the plaintiff's command, but by force of the command of his writ. He is the agent of the law; and, therefore, it is that when he seizes by the plaintiff's direction the goods of a stranger on a ficri facias against the goods of a defendant, the parties do not stant in the relation of joint trespassers. The plaintiff creditor is not a trespasser at all; for the sheriff is bound to stand the brunt of the stranger's action. He acts at his peril, but not without a means of security; and it is his fault if he does not use it.'
On the second and principal point; how far the judgment against the sheriff operated as a bar to the suit against Lovejoy & Co.
There seems to be a great conflict of opinion in the books, whether a judgment alone against one tort-feasor operates as a bar to a suit against another; some holding it to be an absolute bar, others that judgment with execution is necessary, and others that satisfaction is necessary.
In numerous cases which may be referred to in this country, it has been either decided, declared, or assumed, as we read the cases, that judgment alone operates as a bar.  This is the direction certainly in which these cases set. Other cases would indicate that judgment and execution so operate;  and in one case  it has been held that absolute satisfaction was necessary.
It is impossible to reconcile the American cases. The English courts keep clear of the whole difficulty by treating the judgment, of itself, as a bar; and this we submit is the better doctrine.
The leading English case is Brown v. Wootton, temp. James I, reported by three different reporters, Yelverton, Croke, and Moore, all essentially in one way.  Sir Henry Yelverton gives the case thus:
'In trover of certain goods in particular, the defendant pleaded that the plaintiff had brought the like action against J. S. for the same goods before this action brought, in which suit he so far prosequtus est against J. S. that he had judgment and execution against J. S., and averred that the goods contained in both actions were the same goods. Upon which the plaintiff demurred, and it was adjudged against the plaintiff.'
This is much in point, and the case was decided in the best days of the old English law; Popham being Chief Justice; Fenner, Gawdy, Sir. C. Yelverton, and Williams, eminent names in judicial history, his associates. Mr. Theron Metcalf (now Mr. Justice Metcalf, of the Supreme Court of Massachusetts), commenting on it, A.D. 1820, in his excellent edition of Yelverton, says: 'No case has been found in which the precise point adjudged in the taxt, viz., that in the action of trover a former recovery against one of two or more joint tort-feasors for the same conversion and a writ of execution sued out is a bar, has been otherwise decided.'
In King v. Hoare, A.D. 1844, the Court of Exchequer  decided that a judgment, without satisfaction, recovered against one of two joint debtors, is a bar to an action against the other; though secus where the debt is joint and several. The court, Baron Parke giving its judgment, refers to Brown v. Wootton, just cited, and declare that 'a joint contract cannot be distinguished from a joint tort;' thus assuming Brown v. Wootton to have been rightly decided, and in effect affirming it.
Buckland v. Johnson, decided ten years later in the Common Pleas of England,  is to the same result. In that case it appeared that a father and son had wrongfully converted the goods of the plaintiff by selling them; that the proceeds of the sale, 150, were received by the son alone; and that the plaintiff had sued the father, and recovered a verdict for 100 as the value of the goods so converted; but that in consequence of his insolvency he had obtained no satisfaction. He now sued the son. But Jervis, C.J., says: 'If two jointly convert goods, and one of them receives the proceeds, you cannot, after a recovery against one in trover, have an action against the other for the same conversion, or an action for money had and received to recover the value of the goods for which a judgment has already passed in the former action. . . . The fallacy of the plaintiff's argument arises from his losing sight of the fact, that by the judgment in the action of trover the property of the goods was changed, by relation, from the time of the conversion, and that consequently the goods from that moment became the goods of the son;' and his lordship quotes with approbation the language of Baron Parke in the case last cited: 'The judgment of a court of record changes the nature of that cause of action, and prevents it being the subject of another suit; and the cause of action, being single, cannot afterwards be divided into two.'
But if the court shall be of the opinion that a party may sue and recover separate judgments against co-trespassers, and then elect which judgment he will enforce, then we say that the recovery of judgment against the sheriff, and the receipt of partial satisfaction on that judgment from him before the commencement of this suit, will operate as a bar to this suit. How can the court proceed now to try the original trespass when it has been partially settled for? How would a declaration be framed? How would the court proceed at the trial? What becomes of the $800 paid? Must it not be credited in some way, or deducted? and if so, how? The plaintiff is seeking to recover full damage for a wrong partially redressed.
In the Vermont case of Sanderson v. Caldwell,  which is opposed to our general view, the judgment first recovered was in no part satisfied.
On the third point, the effect of the judgment against the sheriff; is it conclusive?
Lovejoy & Co., we think, are not estopped to defend this suit because they gave the sheriff a bond of indemnity, or because they took part in the defence of the suit against him. If this were a suit by sheriff against Lovejoy & Co. upon their bond of indemnity to him against that suit, and upon notice or otherwise they had defended the suit against him, then perhaps as between them and the officer they would have been concluded by the judgment against him. But that is not the question here. The defendants were neither parties nor privies to the judgment against the sheriff. 
Mr. Ball, contra:
On the first question: All persons who direct or request another to commit a trespass are liable as co-trespassers, and giving a bond of indemnity in such case makes the party a trespasser. The proposition is well-established elementary law, and need not be unfolded or enforced. Upon the facts the court will readily apply what we conceive to be both true and applicable.
On the second and principal question: It is a settled principle that all torts are several as well as joint, and that the injured party can maintain an action against all the tort-feasors jointly or against each one separately. Hence such party must have the right to pursue each tort-feasor to judgment and execution till he gets satisfaction. That satisfaction is the essential matter appears even in cases contemporary with Brown v. Wootton, reported in Yelverton, and which seems to be the foundation of the recent decisions in England, and is one of the citations of the opposite counsel. In Cocke v. Jenner, reported by Lord Hobart,  the court in speaking of joint trespassers says:
'If they be sued in several actions, though the plaintiff make choice of the best damage, yet when he hath taken one satisfaction he can take no more; and if he require two an audita querela will lie.'
The same idea is presented in Corbett v. Barnes, which arose soon after and is reported in Sir William Jones.  The report is in Norman French, but translated, reads in the material parts, thus:
'Barnes brought trespass of assault and battery, in London, against Hill in the Common Bench and recovered; and afterwards trespass of assault and battery against Corbett in the King's Bench, and two others for the assault and battery in Hertfordshire. Hill was taken in judgment, and afterwards judgment given against the three others in the King's Bench. Hill paid the damages recovered against him, and satisfaction was entered. Then Corbett was taken in execution, when he and the other two brought an audita querela, setting forth the whole matter, with an averment that the said assault and battery in London and Hertford was the same assault. And by Justices Jones, Croke, and Barkeley, the audita querela lies; for although for the same assault the plaintiff may have several actions and recover, yet when a recovery is had against one, and satisfaction, he cannot have another satisfaction; just as where an obligation is made jointly and severally, and the obligee sues in the Common Bench one by several writ, and recovers, and afterwards sues another in the King's Bench upon the same obligation, nevertheless if one of them makes satisfaction, the other shall have an audita querela to avoid the execution; for the plaintiff cannot have nisi unica satisfactio. So here the plaintiff can have several recoveries, but if one satisfy, the other shall have audita querela to set aside the execution against him.'Many American cases decide or declare this explicitly. 
So in the recent English case of Cooper v. Shepherd,  the former judgment had been paid, although that fact is by mistake omitted in the marginal note. The court say, 'The plaintiff, after he has once received the full value, is not entitled to further compensation in respect to the same loss, and according to the doctrine of cases cited in the argument, by a former recovery in trover and payment of the damages, the plaintiff's right of property is barred, and the property vested in the defendant in that action. See Adams v. Broughton (2 Strange, 1078), and Jenkins, 4th Century, Case 88, p. 189, where it is laid down in trespass against B. for taking a horse, A. recovers damages by this recovery and execution done thereon, the property in the horse is vested in B., solutio pretii emptionis loco habetur.'
On the third question. It is submitted that the judgment against the sheriff is conclusive upon Lovejoy & Co. The sheriff was their agent. They directed the attachment and sale; they gave the bond of indemnity; they defended the suit against him, and were the real defendants in it; they paid the attorneys and counsel, and had the exclusive control of the defence. Privies, as well as parties, are concluded by a judgment. Lovejoy & Co. cannot, therefore, again contest the case on its original merits. 
Mr. Justice MILLER delivered the opinion of the court:
^1 Fitler v. Fossard, 7 Pennsylvania State, 541; and see Sowell v. Champion, 6 Adolphus & Ellis, 417.
^2 Wilkes v. Jackson, 2 Henning & Munford, 355; Hunt et al. v. Bates, 7 Rhode Island, 217; Rogers et al. v. Moore, 1 Rice S.C.. 60, 62; Floyd v. Browne, Adm'r, 1 Rawle, 121; Marsh v. Pier, 4 Id. 288; Fox v. Northern Liberties, 3 Watts & Sergeant, 103, 107; Merrick's Estate, 5 Id. 9, 17; Norris v. Beckley, 2 Mills' Constitutional Reports, S.C.., New Series, 228; Johnson et al. v. Packer, Nott & McCord, 1; Wilburn v. Bogan, 1 Spear, 179; Trafton et al. v. United States, 3 Story, 646; Town of Marlborough v. Sisson et al., 31 Connecticut, 332; Ayer v. Ashmead, 31 Id. 447, 453.
^3 Livingston v. Bishop, 1 Johnson, 290; White v. Philbrick, 5 Greenleaf, 147; Campbell v. Phelps, 1 Pickering, 65.
^4 Sanderson v. Caldwell, 2 Aikin, 195.
^5 Yelverton, 67; Croke Jac. 73; Moore, 672.
^6 13 Meeson & Welsby, 504; see, also, Leachmere & Fletcher, 1 Crompton & Meeson, 634; and what is admitted by the S. G. arguendo, in Bird v. Randal, 3 Burrow, 1347.
^7 15 C. B. (80 English Common Law), 145.
^8 2 Aiken, 195.
^9 See Sprague v. Waite, 19 Pickering, 458; Eastman v. Cooper, 15 Id., 279; Church v. Leavenworth, 4 Day, 278.
^10 Hobart, 66.
^11 Sir W. Jones, 377; sometimes cited as first Jones, to distinguish it from Sir Thomas Jones, in the subsequent reign cited as second Jones.
^12 See Livingston v. Bishop, 1 Johnson, 290; Sanderson v. Caldwell, 2 Aiken, 195; Osterhout v. Roberts, 8 Cowen, 43; Blann v. Crochern, 20 Alabama, 320; Knott v. Cunningham, 2 Sneed, 204.
^13 3 Manning, Grainger & Scott, 266.
^14 Rapelye v. Prince, 4 Hill, 119, 123; Calkins v. Allerton, 3 Barbour, 173; Glass v. Nichols, 35 Maine, 328; Warfield v. Davis, 14 B. Monroe, 41, 42; Castle v. Noyes, 14 New York, 329; Farnsworth v. Arnold, 3 Sneed, 252; Griffin v. Reynolds, 17 Howard, 609.