In England, the liability of joint tort-feasors is joint;5 in America, joint and several.6 In either view, of course, no attention is paid, in assessing damages, to the actual division of the spoils. But what if the injured party elects to sue in assumpsit for restitution instead of in trespass for damages ? Clearly, he is not entitled to a joint judgment if one of the wrongdoers has derived no benefit from the commission of the tort;l nor is he entitled to a joint judgment, if each has received a benefit, for the sum of the benefits separately received by them.2 The obligation to make restitution is essentially several, each tort-feasor being liable to the extent of the benefit received by him. Even if the proceeds of the tort are not divided, but are held by one of the tort-feasors for the benefit of all, or by a common agent, it would seem that each should be answerable only to the extent of the value of his interest in the booty. It has been held that "if the money was received by a common agent, those for whose benefit it was thus received were jointly liable for the whole sum," 3 but since a joint judgment is enforceable in full against any one obligor, this rule would permit the collection of the entire proceeds of the tort from one who has only a fractional interest therein - a violation of the fundamental principle which underlies the tort-feasor's obligation in assumpsit.
1 U. S. R. S. Sec. 4919.
2 See Professor A. L. Corbin, "Waiver of Tort and Suit in Assumpsit," 19 Yale Law Jour. 221, 231. Also: Schillinger v. United States, 1894, 155 U. S. 163; 15 S. Ct. 85; Steam Stone-Cutter Co. v. Shel-dons, 1883, 15 Fed. 608, (C. C. Vt.). But see, contra, B. F. Avery & Sons v. McClure, 1909, 94 Miss. 172; 47 So. 901; 22 L. R. A. (N. S.) 256.
3 See U. S. R. S. Sec. 4919.
4 In May v. Logan, 1887, 30 Fed. 250, 259, (C. C. Ohio), Jackson, J., said : "If Congress had not directed that an action on the case should be the remedy for the recovery of damages for the infringement of a patent, the patentee could, in cases like the present, waive what is called the tortious act and bring assumpsit upon the implied contract against the county to recover the value of the property appropriated." But see Steam Stone-Cutter Co. v. Sheldons, 1883, 15 Fed. 608, (C. C. Vt.).
5 Brinsmead v. Harrison, 1872, L. R. 7 C. P. 547. 6 Lovejoy p. Murray, 1865,3 Wall. (U. S.) 1; Elliott v. Hayden, 1870, 104 Mass. 180; McMannus v. Lee, 1869, 43 Mo. 206; 97 Am. Dec. 386.