Kasson v. People ex rel. Rease

For a joint trespass, committed by two persons, the party injured has his election to prosecute both in one action, or to sue them separately; and in the latter case, provided he recovers, he has the further election de melioribus dmnnis. If he elects to sue the wrong doers separately, and recovers in both actions, and sues out an execution upon one of the judgments, upon which the defendant is committed to jail, and then the assignee of both judgments gives a written direction to the sheriff to discharge that defendant from custody, the imprisonment of such defendant and his discharge therefrom, by the assignee, will operate to discharge not only the judgment upon which such defendant was charged in execution, but also the judgment against the other joint trespasser; and the remedy upon both judgments is gone. In such a case the plaintiff in the judgments is entitled to but one satisfaction for the injury he has sustained by the trespass committed by the defendants in the two judgments; and that he has, by the imprisonment of one of them, and discharging him therefrom.

CEETIOEAEI to the county judge of Steuben county. On the 28th day of May, 1861, Michael Eightenburgh duly recovered a judgment against Alfred J. Gilbert, in an action brought before J. S. Eobinson, Esq. a justice of the peace, for $101.88 damages and costs. On the 14th day of June, 1861, the said Eightenburgh duly recovered a judgment against Peter Eease in another action, before the same justice of the peace, for $90.13 damages and costs. The two actions were brought against Gilbert and Eease separately, for a trespass committed by them. The said two judgments were duly assigned to Julius H. Gilbert, prior to the 29th of June, 1861. On the 26th of June, 1861, Alfred J. Gilbert was imprisoned in the jail of Steuben county, by virtue of an execution issued upon the judgment against him. On the ■ 29th day of June, 1861, Alfred J. Gilbert requested Julius H. Gilbert to consent that he be discharged from the jail, to which Julius H. Gilbert consented, in consideration of a written agreement then made and delivered by Alfred J. Gilbert to him, by which he promised to pay said judgment against him, ancl agreed that his “ discharge from jail should not affect the force or validity of said judgment, or. prejudice the right of the said Julius H. Gilbert to enforce or collect the same by execution or otherwise.” ; Thereupon the said Alfred J. Gilbert was released by the sheriff from jail. On the 5th day of April, 1862, an execution was issued by" the said justice upon the judgment against Eease, in due form, authorizing and directing any constable to arrest and convey said Eease to jail, in case property could not be found by the constable, to satisfy the same. By virtue of this execution Eease was, on the 12th of April 1861, arrested by a constable, and eonveyed to jail, and there imprisoned. Eease continued in the custody of the keeper of said jail until the 14th of April, 1862, when he was brought before Hon. W. Barnes, county judge of said county, by virtue of a wit of habeas corpus, allowed by him, to inquire into the cause of the imprisonment of said Eease. The writ was allowed upon the petition of Eease. On the same day E. E. Kasson, the sheriff, in obedience to the command of the writ of habeas corpus, brought Eease before the. said county judge and made return thereto. The said sheriff .and Julius H. Gilbert also appeared before the county judge, and resisted the discharge. Át the close of the proofs, they moved that Eease'be remanded by,the judge, on the grounds: 1. That it appeared that he was detained in custody by virtue of an execution issued on a final judgment of a. court of competent jurisdiction. 2. That the judgment upon which the execution issued having been duly rendered, and the execution .being regular on its face, the inquiry, for the purposes of that. proceeding, could not go back of the time of issuing such execution, to- determine whether it was null and void or. not.. 3. That upon the return of the sheriff to the writ of habeas corpus, and upon the facts appearing on. the hearing, the prisoner was not entitled-to be discharged from custody. The judge denied the motion, and the sheriff, and said Julius H. Gilbert by their counsel respectively excepted. Thereupon the county. judge found and decided as conclusions of law, from the facts so appearing: 1. That whether the said judgment against the prisoner was in any manner discharged or satisfied, prior to the issuing of said execution thereon, was a proper question of inquiry in the proceeding before said county judge, notwithstanding the judgment was duly rendered and the execution regular-on its face., 2. That the discharge of Alfred J. Gilbert, with the consent of Julius H. Gilbert, from the custody of the sheriff, where he was detained by virtue of the said execution issued upon the judgment recovered against him, operated as, and was, a satisfaction and discharge of the judgment, although such consent was given by Julius BL Gilbert in consideration of the written agreement executed and delivered to him by said Alfred j." Gilbert. 3. That although the said agreement of Alfred J. Gilbert was voluntarily made and delivered by him while in custody, for the purpose of procuring the consent and direction of Julius H. Gilbert to his discharge, and such consent and direction were thereupon given, such agreement could not defeat the satisfaction and discharge of the judgment. 4. That the discharge of Alfred J. Gilbert from his imprisonment, with the consent of Julius BL Gilbert, being a voluntary discharge by the latter, operated as a satisfaction .and discharge of the judgment against Eease, and therefore the imprisonment of said Eease by virtue of the execution issued upon the judgment against him, was illegal. To these several conclusions of law the said sheriff and Julius BE. Gilbert, by their counsel, respectively excepted. Thereupon the county judge made an order directing that said Eease be discharged from custody, and the sheriff brought this writ of certiorari, to review the decision.