#### *Jacob Smith vs. C. J. T. Singleton.*

In an action of trespass and assault and battery, where the battery has been committed by several, and a recovery had against one, such recovery may be pleaded in bar to an action for the same battery brought against another.

*At*Beaufort, *Spring*Term, *1841*— Before O’Neall, J.

The following is his Honor’s report of the case.

This was an action for a trespass on the person of the plaintiff, committed by the defendant, Lucius C. Robert, and others. The plaintiff brought several actions, and at a previous term, recovered a verdict of damages against Lucius C. Robert, for the same assault and battery of which the plaintiff complained against the defendant, and on that verdict judgment was entered up, and was fully paid and satisfied. The defendant tendered to the plaintiff the costs of this action, and pleaded the recovery had by this plaintiff against Lucius C. Robert, for the assault and battery of which he complained against him, and *185averred that that recovery had been satisfied, and that he had tendered to the plaintiff the costs of this case. The plaintiff demurred generally.

I was anxious (if I had been at liberty to do so,)'to sustain the demurrer. For the battery was, from what I learned in other trials, during the term, an enormous one, committed by the defendant; Robert was only an aider and abettor in its perpetration. The recovery against him was, I think, for twenty dollars.'

But, on authority, there can be no clearer proposition, than that.the plea was a bar to the plaintiff’s action. In Boiler’s N. P. 20, (referring to Yelv. 68,) it is said, “ so if a battery be committed by several, and a recovery had against one, such recovery may be pleaded in bar to an action for the same battery brought against another.” In *Hawkins vs.*Hatton, 1 N. M’C. 318, the point was presented for the consideration of the Constitutional Court. The opinion of the Court was delivered by Mr. Justice (now Chancellor) Johnson. He gave the following as the law on the subject: “ It is unreasonable, that a party should have more than one satisfaction for the same injury ; and although there may be several wrong-doers, and the party injured may maintain actions against them severally, yet each is liable for the whole entire damages sustained ; and the law, abhorring a multiplicity of actions, will presume that the jury in any one of the actions, would give him damages to the extent of the injury, and forbids that he should prosecute a further remedy after there has been a satisfaction. But, until there is a satisfaction of the damages assessed, a recovery could not operate as a bar to an action against another of the joint trespassers ; because it is possible, from the insolvency of the first defendant, and various other causes, the plaintiff might never be able to obtain his redress. It was, therefore, clearly incumbent on the defendant, to have averred a satisfaction in his plea of former recovery.” In another part of the opinion, the Judge states the rule thus, “ if there has been a recovery against one of several joint trespassers, the plaintiff may proceed against the others, until there is a satisfaction of the damages recovered against some one of the defendants; and if he elect, as he *186may do, to proceed to the satisfaction of any one of the judgments, the Court will, on the payment of the costs in the other cases, order satisfaction to he entered on all the judgments.” This statement of the rule gave rise to the notion, that before the plea of the former recovery, averring satisfaction, could be sustained, it must also aver, that the costs of the case pleaded to, had been tendered ; and in a subsequent stage of the case of *Hawkins vs.*Hatton, that very objection was presented and sustained at *Nisi Prius,*and the decision was unquestioned by appeal. The rule, as now recognized in practice in this State, is stated in *Park vs.*Hopkins, 2 Bail. 411, in the following words: “ For a joint trespass, and other injury, *ex*delictor, which may legally arise from the joint act of two or more, the party injured has the right to sue all the wrong-doers, jointly, or severally, as he may think proper. If he brings separate actions against each of them, a recovery against, and satisfaction of the damages by one, will, upon the payment of the costs in the other cases, bar a further recovery.”

The plea conforms to all these requisites. The demurrer was overruled, and there was judgment in bar for the defendant. The plaintiff appeals, on the ground, that “ there was error in ruling that the recovery in the suit against Lucius C. Robert was a bar to the suit against this defendant.”

Martin *for the*motion,

insisted that notwithstanding the current of English decisions, they could not apply in this State, for this reason. In England, the damages against joint trespassers cannot be apportioned between the trespassers, according to the *degree of participation*of each'— in this State they may be. (See first case in Bay, *White vs. McNeely el al.)*The reason for the rule not existing here — the rule of law should not, therefore, apply.

Hutson, *contra.*

In addition to the cases referred to by the Court, in the report of the case, relied on *Cocke vs.*Jenner, Hobert, 66 ; *Cobbet vs.*Barnes, Wm. Jones, 377; *Bird vs.*Randall, 3 Burr. 1353; *Livingston vs. Bishop et al.*1 John. 291.

*187
      *Curia, per*

O’Neall, J.

This Court, for the reasons given below, are satisfied with the decision; but as this case was attempted to be distinguished from the cases referred to in the report, on the authority of *White vs. McNeely*and others, 1 Bay, 11, it may be well enough to show that no such distinction can be allowed.

It is true, we early departed from the English rule, that in a joint action of trespass, the jury cannot sever in their damages. The case of *White vs. McNeely,*in 1784, ruled, that the jury in such case, might sever and .apportion the damages according to the degree and nature of the offence committed by each defendant. The wisdom of such departure is, I think, very questionable; but it has been in practice ever since conformed to'; and we are now asked to give it a further extension, by abolishing another well settled principle, that in several actions for a joint trespass, a recovery against one defendant, the satisfaction of it, and the payment of the costs in the other cases, will, bar any recovery against the other defendants.

It is supposed that this principle, and the consequences of a recovery in such a case as *While vs. McNeely,*cannot stand together. For it is asked, if a recovery against one of several joint trespassers, and satisfaction, be a bar to a recovery against the others, why would not the payment of the damages found against any one of the defendants in a joint action, bar the collection of the damages found against the others'? The answer is obvious — in several actions, the law supposes the jury to find against any one, the entire damages sustained by the plaintiff, and therefore, satisfaction in one is satisfaction in all. But in a joint action, when the damages are apportioned, the aggregate of all the damages found, is the damage of the plaintiff; and hence satisfaction by one, of his part, is not satisfaction for all, and of the whole.

The motion is dismissed.

We concur. J. S. Richardson, A. P. Butler, D. L. Wardlaw.