nor issuing execution, nor anything short of satisfaction is a bar to a second suit brought against another joint trespasser.

Osterhout v. Roberts, 8 Cow. 43, a year later, in the Supreme Court of New York, was a plea that defendant's son had been sued, had a judgment rendered against him, and had been taken in execution and imprisoned sixty days for the same trespass. Yet the plea was held bad. The trespass was for taking a watch.

In Elliott v. Porter, 5 Dana, 299, Robertson, Ch. J., of the Court of Appeals of Kentucky, examines the whole subject fully, both on principle and authority, and holds that the first judgment is no bar, and that the title to the property does not pass by judgment in trespass or trover. This case is affirmed by the same court, in Sharp v. Gray, 5 B. M. 4.

Blann v. Cochern, in Alabama, 20 Ala. 320, was an action of trespass. The defendant pleaded a former recovery against a co-trespasser, and payment of the judgment and costs so recovered, to the clerk of the court. But the plea was held bad, because it was not averred that it was accepted by the plaintiff.

In Knott v. Cunningham, 2 Sneed, 204, the Supreme Court of Tennessee held that a former judgment against one tortfeasor, was no bar to a suit against another, for the same tort, without satisfaction.

In Page v. Freeman, 19 Mo. 421, the Supreme Court of Missouri held the same doctrine.

In Floyd v. Browne, 1 Rawle, 125, Gibson, Ch. J., of Pennsylvania, while holding that after a judgment in trover against two trespassers without satisfaction, plaintiff cannot bring assumpsit against another trespasser, uses this language: "A plaintiff is not 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 concurrent remedies. Trespass is, in its nature, joint and several, and in separate actions against joint trespassers being consistent with each other, nothing but satisfaction by one will discharge the rest." Trover and assumpsit, however, he holds to be inconsistent remedies.

If we turn from this examination of adjudged cases, which largely preponderate in favor of the doctrine that a judgment, without satisfaction, is no bar, to look at a question in the light of reason, that doctrine commends itself to us still more strongly. The whole theory of the opposite view is based upon technical, artificial and unsatisfactory reasoning.

We have already stated the only two principles upon which it rests. We apprehend, that no sound jurist would attempt, at this day, to defend it solely on the ground of transit in rem judicatum. For while this principle, as that other rule, that no man shall be twice vexed for the same cause of action, may well be applied in the case of a second suit against the same trespasser, we do not perceive its force when applied to a suit brought for the first time against another trespasser in the same matter.

In reference to the doctrine that judgment alone vests the title of the property converted, in the defendant, we have seen that it is not sustained by the weight of authorities in this country. It is equally incapable of being maintained on principle.

The property which was mine, has been taken from me by fraud or violence. In order to procure redress, I must sue the wrong-doer in a court of law. But, instead of getting justice or remedy, I am told that by the very act of obtaining a judg ment - a decision that I am entitled to the relief I ask the Thon property, which before was mine, has become that of the man who did me the wrong. In other words, the law, without having given me satisfaction for my wrong, takes from me that which was mine, and gives it to the wrong-doer. It is sufficient to state the proposition to show its injustice. ?

It is said that the judgment represents the price of the property, and as plaintiff has the judgment, the defendant' should have the property. But if the judgment does represent the price of the goods, does it follow that the defendant shall have the property before he has paid that price? The payment of the price and the transfer of the property are, in the ordinary contract of sale, concurrent acts.

But in all such cases, what has the defendant in such second suit done to discharge himself from the obligation which the

law imposes upon him, to make compensation? His liability must remain, in morals and on principle, until he does this. The judgment against his co-trespasser does not affect him so as to release him on any equitable consideration. It may be said that neither does the satisfaction by his co-trespasser, or a release to his co-trespasser do this; and that is true. But when the plaintiff has accepted satisfaction in full for the injury done him, from whatever source it may come, he is so far affected in equity and good conscience, that the law will not permit him to recover again for the same damages. But it is not easy to see how he is so affected, until he has received full satisfaction, or that which the law must consider as such.

We are, therefore, of opinion that nothing short of satisfaction, or its equivalent, can make good a plea of former judgment in trespass, offered as a bar in an action against another joint trespasser, who was not party to the first judgment. The second question must, therefore, be answered in the negative.

F. Mechling, G. W. Lathey and D. Barclay for plaintiff in

error.

W. L. Corbett for defendant in error.

READ, J. The bridge across Red Bank Creek, between the counties of Armstrong and Clarion, at the place known as the Rockport Mills, was a county bridge, maintained and kept in repair at the joint and equal charge of both counties. Whilst John A. Humphreys was crossing the bridge it fell and he was severely injured; he brought suit for damages against the

county of Armstrong; and on the trial, under the charge of the court, there was a verdict for the defendant. This was reversed on writ of error (6 P. F. Smith, 204); and upon a second trial there was a verdict for the plaintiff for $1100 damages, on which judgment was entered. This judgment, with interest and costs, was paid by Armstrong county, and the present suit is to recover contribution from Clarion county. On the trial the learned judge nonsuited the plaintiff on the ground that one of two joint wrong-doers cannot have contri-{ bution from the other.

The commissioners of the two counties had examined the bridge in the summer and ordered some repairs, which were made. There can be little doubt that morally Clarion county was bound to pay one-half of the sum recovered from and paid by Armstrong county, and the question is, does not the law make the moral obligation a legal one? Merriweather v. Nixon, 8 Term R. 186, the leading case on the subject, was of a joint injury to real estate, and for the joint conversion of personal property, being machinery in a mill. In Colburn v. Patmore, 1 Cr. M. & R. 73, the proprietor of a newspaper, who, for a libel published in it, was subjected to a criminal information, convicted and fined, sought to recover from his editor, who was the author of the libel, the expenses which he had incurred by his misfeasance; Lord Lyndhurst said: "I know of no case in which a person who has committed an act declared by the law to be criminal, has been permitted by the law to recover compensation against a person who has acted jointly with him in the commission of the crime."

So in Arnold v. Clifford, 2 Sumner, 238, it was held, a promise to indemnify the publisher of a libel is void. "No one," said Judge Story, "ever imagined that a promise to pay for the poisoning of another was capable of being enforced in a court of justice."

In Miller v. Fenton, 11 Paige, 18, the wrong-doers were two of the officers of a bank, who had fraudulently abstracted its funds, and of course there could be no contribution between criminals. In the case of The Attorney General v. Wilson, 4 Jurist, 1174, cited in the above case by the chancellor, and also reported in 1 Craig & Phillips, 1, where it was contended

that all the persons charged with the breach of trust should be made parties, Lord Cottenham said: "In cases of this kind. where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no contribution between them, and each case is distinct, depending upon the evidence against each party. It is therefore not necessary to make all parties who may more or less have joined in the act complained of." Seddon v. Connell, 10 Simons, 81, is to the same effect.

In Story on Partnership, sec. 220, after speaking of the general rule that there is no contribution between wrongdoers, the author says: "But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known meditated wrong, and not where the party is acting under the supposition of the entire innocence and propriety of the act, and the tort is merely one by construction, or inference of law. In the latter case, although not in the former, there may be and properly is, a contribution allowed by law for such payments and expenses between constructive wrongdoers, whether partners or not." The case of Adamson v. Jarvis, cited by the learned commentators, is in 4 Bing. 66, in which Lord Chief Justice Best, after noticing Merriweather v. Nixon, says: "The case of Phillips v. Biggs, Hardress, 164" (which was on the equity side of the Exchequer), "was never decided; but the Court of Chancery seemed to consider the case of two sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors."

"From the inclination of the court in this last case, and from the concluding part of Lord Kenyon's judgment in Merriweather v. Nixon, and from reason, justice and sound policy, the rule that wrong-doers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known he was doing an unlawful act."

In Betts v. Gibbins, 2 Ad. & E. 57, Lord Denman said: "The case of Merriweather v. Nixon, 8 T. R. 186, seems to me to have been strained beyond what the decision will bearthe present case is an exception to the general rule. The gen