#### John H. Sturtevant *versus*Henry Waterbury.

The plaintiff recovered a judgment for 5000 dollars from different persons, in atl action of trespass *de bonis asportalis;*but no execution was ever issued upon, nor was any satisfaction ever obtained of, the judgment The defendant received into his possession the goods, (or a part of them,) which were the subject of the action of trespass,—sold them, and took the proceeds. In an action of *assumpsit*against him, for money had and received, (being the proceeds of the goods sold,) it was held that the action was well brought, and could be sus* tained.

When trespass or trover will lie, if the wrong-doer has converted the property into money, the plaintiff may waive the *tort,*and bring assumpsit.

This was an action of *assumpsit*for money had and received ; the declaration containing the common counts, to which the defendant pleaded the general issue. At the trial of the cause, it appeared, that several months before the present action was corn» menced, the plaintiff had instituted a suit, in the Supreme Court, against one Jera Waterbury, Micaiah Moore, JohnN. Brush, and Francis Dustan, for trespass *de bonis asportatis,*and that upon the trial of that action, he had recovered a verdict against them for 5000 dollars, upon which a judgment was afterwards entered up? *450but no satisfaction of the judgment was ever obtained, nor did the plaintiff ever issue an execution upon it.

Upon the trial of the *present*suit, the plaintiff called two of the jurors, before whom the action of trespass was tried, and proved by them, that, upon the trial of *that*action, the present defendant, being called as a witness, testified that “ he had received certain “ goods, which'were the subject of controversy in that cause, into *“*a house occupied by himself and his brother, Jera Waterbury;— “ which goods, the defendant afterwards, by the direction of his *“*brother, *sold by*auction, and received the proceeds,—amounting “ to about 700 dollars. The defendant also testified, that he *“*held said proceeds at the time of the trial of the action of trespass, “ for the purpose of paying a note of 200 dollars, which be, as “ one of the firm of Henry and Jera Waterbury, held against the “ plaintiff, and the balance for the plaintiff, or the parties entitled “ to it. After the goods were received by the defendant, they “ were placed under lock and key until sent to auction; and af~ *“*ter the sale, he gave notice to the creditors of the plaintiff that *“*the balance of said proceeds, after deducting the note, would “ be paid over to them, or any one who bad the legal right to it.”

The defendant, on his part, called Moore, one of the defendants in the former suit, as a witness, and he testified, that at the time the goods, which were the subject of that action, were taken, the plaintiff and himself were partners; that the goods were taken to the house of the defendant and Jera Waterbury, for the purpose of being sold, and paying the debt due them on said note, and applying the balance towards the payment of other debts due from the plaintiff and himself. That the defendant received the proceeds of said sale, and, after the trial of the action of trespass, paid the proceeds over to the witness, deducting therefrom the amount of said note.

The plaintiff then called witnesses to contradict the testimony of Moore, and show that he never had been a partner with the plaintiff. That the goods in question were taken from his store, at a time when he was absent from the city, by means of a combination or conspiracy formed by the defendants in the action of trespass, one part of which was, to represent Moore as a partner, *451in order to give a color of right to a high-handed trespass and outrage upon his property. But it did not appear, by any positive proof, that the defendant had joined in the combination, or that he knew from whence the goods came, which were put into his hands.

The defendant, after producing the record of the judgment in the action of trespass, contended that the recovery in that action was a bar to any recovery in this. The Chief Justice, before whom the cause was tried, reserved that question, and directed the jury to find a verdict for the plaintiff, if they should be of opinion that Moore was *not*a partner with the plaintiff. The jury returned a verdict in favor of the plaintiff for the whole amount for which the goods were sold at auction, together with interest, amounting to 900 dollars and upwards.

A case was thereupon made by the defendant, which either party had leave to turn into a bill of exceptions, or a special verdict.

*Mr. J. Anthon*and *Mr. Slosson,*for the defendant,

now contended that the defendant was not entitled to judgment on the verdict. That in trespass, all are principals, and that the defendant, by receiving and disposing of the goods, became a principal and joint trespasser. *[Marsh v. Berry, 7 Cowen’s R.*344. 6 *Com. Dig.*392. *Tresp. C.*1.]

2. That the plaintiff, by the judgment and recovery in *trespass*against the co-trespassers, elected his remedy, and could not maintain assumpsit against this defendant, for the same act. [Co. *Lit.*144 *b.*145 *a.*2 *Com. on Contr.*558-9. *Kitchen v. Campbell,*3 *Wills,*304. 308. 4 *J. R.*474. 1 *Pick. R.*62. 18 J. *R.*459. *Heyden’s case,*11 *Coke,*5. *Bacon’s Abrid. damages, D.*4.]

3. The rule, (they said,) that a recovery without satisfaction is not a bar to another action in tort for the same trespass, is founded on the principle, that the plaintiff may elect *de melioribus damnis,*which cannot apply to actions inconsistent with each other, *as trespass and assumpsit,*or to actions founded on distinct causes of action.

4. In all cases, therefore, where this election does not exist, a *452prior recovery must necessarily transfer the title, and be a bar. [2 *Stran. R.*1078. *Cas. temp. Hard.*319. 4 *Esp. R.*251. 7 *Cranch,*565.] Can the plaintiff recover the amount of the goods *in addition*to the amount, which must have been allowed for the same goods in the action of trespass *1*The former recovery, even without satisfaction, would transfer the title to the goods, except as against a joint trespasser. If the goods be sold, that sale cannot be questioned after a recovery in trespass or trover, and here it is perfectly apparent, that the plaintiff will have two satisfactions for one wrong.

*Mr. Hugh Maxwell, contra,*for the plaintiff, contended,

that as there was no *satisfaction*of the judgment against Jera Waterbury and others, the mere recovery, without satisfaction, did not change the property in the chattel. [8. *Cowen’s R.*43.] The defendant, (he said) admitted that the goods were not *his;*he admitted also that he held the proceeds of. them for the lawful owner,—and the plaintiff is that person. As for the set-off claimed by the defendant, that is totally inadmissible, it being for a partnership and- not for an individual claim. Besides, as the money was obtained tortiously, no right of set-off could exist, [The defendants’ counsel admitted that the claim for a set-off could not be maintained, and waived that point on the argument.]

II. A plaintiff may waive his action in *tort,*and proceed to recover the price of the chattel received by the tort-feasor, in an action for money had and received. [2 *Ld. Ray.*1216. 1 *Mau. Sel.*584.]

In this case, the defendant was not a joint trespasser, and if he had been joined as a defendant in the original suit, he would, in all probability, have been acquitted. We have shown that he has the proceeds of our property in his hands, and he admits that it is held for the right owner. What shall be done with it *1*Shall he hold it as his own, or deliver it over to the wrong doers, and leave us to our judgment against *them ?*It was probably a part of the original conspiracy, that the property, or some part of it, should be *453placed beyond the reach of a process against the original trespassers; and to defeat this recovery, would be to carry the original combination into complete effect by the forms of the law.

Oakley, J.

This was an action of *assumpsit*for money had and received. It appeared on the trial, that the plaintiff had recovered a judgment for $5000, in an action of trespass *de bonis asportatis,*against *Jera Waterbury, Micaiah Moore*and others, (of whom the defendant was not one) but that no execution had been issued, and no satisfaction of the same, or any part of it, had been obtained. It also appeared, that the defendant had received the goods, or a part of them, for the taking of which that action was brought, and that he subsequently sold the goods and received the avails.

The question is, whether this action of *assumpsit*can be maintained. In *Livingston v. Bishop,*[1 *J. R.*290,] it was decided by the Supreme Court, that when separate actions are brought against joint-trespassers, the plaintiff may recover against each, but shall have but one satisfaction. In *Osterhout v. Roberts,*[8 *Cowen's R.*43,] it was held, that in an action of trover against one defendant, it was no defence that another had been sued in a similar action for the same chattel, and that judgment had ' been obtained, and the party charged on execution, if no actual satisfaction had been received; and that the property of the plaintiff, in the subject matter of the suit, was not changed by the judgment and execution, without satisfaction.

These cases fully establish, that the plaintiff, in the present instance, might maintain an action of trespass against the defendant, if the evidence in the case was sufficient to charge him as a trespasser, and that his property, in the goods in question, was not changed or divested by the judgment obtained by the other trespassers.

It seems also to be well settled, that where trespass or trover will lie, if the wrong doer has converted the property into money, the plaintiff may waive the tort, and bring his action of *assumpsit.*[2 *Com. on Con.*558. *Parker v. Norton.*6 *D. and E.*695. *Lamine v. Dorrell.*2 *Ld. Ray,*1216. *Allanson v. Atkinson.*1 *Mau. and Sel.*587.] It is, however, contended by the *454defendant, that the plaintiff having made his election in this case to proceed for a tort, is thereby concluded, and that he cannot afterwards affirm the sale of the goods by the defendant, and sue on qle imppe¿ contract arising from the receipt of the money. This might be so, if the defendant had been a party to the action of trespass. It was so held in *Ketcham v. Campbell,*[3 *Wils.*304,] and the reason upon which the principle rests, is there stated to be, that you shall not bring the *same cause of action*twice *to*a final determination. *Nemo debet bis vexari pro eadem causa ;*¿nd the court say, what is meant by the same cause of action is, where the *same evidence*will support both actions. It is manifest, that the principle of that case has no application to the present. Here no other action was ever brought against the defendant. It rests upon a different ground altogether from the trespass, and must be supported by different evidence. If it were clear that the defendant could have been sued in an action of trespass, I see no rea son, upon authority or upon principle, why the plaintiff *as to him,*may not waive the trespass and sue in *assumpsit.*It is the more favorable action for the defendant, as the recovery must be restricted to the amount actually received.

It is objected by the defendant, that as the value of the goods must have been included in the verdict, in the former cause, if the plaintiff recover here, he may obtain a double satisfaction. The same remark would apply to separate recoveries, on a joint and several bond, or against the maker and endorser of a note, which are cases of daily occurrence. The remedy, in all such cases, is by an application to the equitable power of the court, by way of motion, or if the party prefer it, by an audita *querela.*

Such would be my view of the case, if the evidence showed that the defendant might have been joined in the action of trespass against Moore and others. But in fact, he does not appear to have been a joint trespasser although he received the goods, and kept them in his possession until the sale ; there is no proof to show that he knew, that they had been taken from the store of the plaintiff; certainly not, that they had been improperly taken. When the defendant sold the goods at auction, they still continued the property of the plaintiff, unless that property was changed by *455the judgment against the trespassers, who had wrongfully taken them from his possession. Such, upon the authority of the cases . before cited, was not the effect of that judgment. The plaintiff • then had a right to reclaim his goods wherever he could find them. He might have sued the defendant in *trover,*or he might affirm the sale of the goods by him, and recover the proceeds in this action of assumpsit, The defendant, in fact, never claimed any right to the goods, or their proceeds, but declared he held the latter for the plaintiff or whoever might appear to be entitled to them, after paying a note held by him and his brother against the plaintiff. His subsequent payment of the proceeds of the goods to *Moore,*who had no right to receive them, cannot exonerate him from his liability to account to the plaintiff.

*Judgment for the plaintiff.*

[W. P. Hawes, *Att'y for the plff.*W. Slosson, *Att’y for the deft.]*

Note.—This cause was twice tried. Upon the first trial, when Moore was offered as a witness, he was objected to by the plaintiff, and excluded by the Judge. The question being brought before the court, a new trial was granted, upon the ground that Moore was improperly rejected. The defendant, did not offer to show that he was intrusted in the goods, but that he was a partner with Sturtevant, and that fact, the court held might be proved by Moore himself.