Whether the pursuit of one remedy to a judgment against one tort-feasor will prevent a subsequent resort to the alternative remedy against another may depend upon whether there is a separate election as to each wrongdoer - a question hereafter to be considered (post, Sec. 299). But there is another and underlying question that must be decided: will a judgment against one tort-feasor operate as a bar to any and all subsequent proceedings against another? By the weight of authority it will not;1 but there are some decisions to the contrary,1 most of which rest upon the theory that in the case of joint or successive conversions a judgment against one converter invests him with title to the converted article.
1 In the case of joint tort-feasors: Lovejoy v. Murray, 1865, 3 Wall. (U. 9.) 1; Amer. Bell Tel. Co. v. Albright, 1887, 32 Fed. 287; Blann v. Crocheron, 1852, 20 Ala. 320; Sheldon v. Kibbe, 1819, 3 Conn. 214; 8 Am. Dec. 176; Elliot v. Porter, 1837, 5 Dana (35 Ky.) 299; 30 Am. Dec. 689; Johnson v. McKenna, 1907, 73 N. J. Eq. 1; 67 Atl. 395; Wright ft. Lathrop, 1825, 2 Ohio 33, 52; 15 Am. Dec. 529; Sanderson v. Caldwell, 1826, 2 Aiken (Vt.) 195. And see Fox v. Northern Liberties, 1841, 3 Watts & Serg. (Pa.) 103.
In the case of successive converters: Matthews v. Menedger, 1840, 2 McLean (U. S. C. C.) 145; Fed. Cas., No. 9289; Spivey v. Morris, 1850, 18 Ala. 254; 52 Am. Dec. 224; McGee v. Overby, 1851, 12 Ark. 164; Atwater v. Tupper, 1877, 45 Conn. 144; 29 Am. Rep. 674; Sharp v. Gray, 1844, 5 B. Mon. (44 Ky.) 4; Hopkins v. Hersey, 1841, 20 Me. 449; Osterhout ft. Roberts, 1827, 8 Cow. (N. Y.) 43.
It has been held that whether or not a judgment is a bar, execution is. White v. Philbrick, 1827, 5 Greenl. (Me.) 147; 17 Am. Dec. 214;
At what time title passes to a converter is a mooted question. It is usually said that in England title passes by the judgment, while in America, by the weight of authority, it does not pass until the judgment is satisfied. But the authorities are in confusion,2 and Professor Ames advanced the theory that title passes at the time of the conversion, subject to a right of action in the injured person for the recovery of the article or damages for its conversion.3
If title does not pass until satisfaction, it is plain that the entry of judgment against one converter should be no bar to subsequent proceedings against another.
If title passes at the time of the conversion, subject to a right of action in the former owner, the entry of judgment against one converter should have no effect upon the right of action against another. Said Professor Ames:4
"Let us suppose, for instance, that B converts the chattel of A, and, before judgment recovered against him in Trespass or Trover, sells it to C, or is in turn dispossessed by C. C, the new possessor, will hold the chattel, as B held it, subject to A's right to recover it. The change of possession simply enlarges the scope of A's remedies; for his new rights against C do not destroy his old rights to sue B, in Trespass or Trover. Nor will an unsatisfied judgment against B in either of these actions affect his right to recover the chattel from C. It is no longer a question of double vexation to one defendant for a single wrong. Not until the judgment against B is satisfied can C use it as a bar to an action against himself." 1
Campbell v. Phelps, 1822, 1 Pick. (Mass.) 62; 11 Am. Dec. 139. But see Osterhout v. Roberts, supra, and Sheldon v. Kibbe, supra, in which it is said that execution against the person is not a bar.
1 In the case of joint tort-feasors: Brown v. Wootton, 1605-06, Yelv. 67; Cro. Jac. 73; Buckland v. Johnson, 1854, 15 C. B. 145; Brinsmead v. Harrison, 1872, L. R. 7 C. P. 547; Hunt v. Bates, 1862, 7 R. I. 217; 82 Am. Dec. 592; Petticolas v. City of Richmond, 1897, 95 Va. 456; 28 S. E. 566; 64 Am. St. Rep. 811.
In the case of successive converters: See Lytle v. Bank of Dothan, 1899, 191 Ala. 215; 26 So. 6; Marsh v. Pier, 1833, 4 Rawle (Pa.) 273; 26 Am. Dec. 131; Fox. v. Northern Liberties, 1841, 3 Watts & Serg. (Pa.) 103.
2 See Buckland v. Johnson, 1854, 15 C. B. 145; Miller v. Hyde, 1894, 161 Mass. 472; 37 N. E. 760; 25 L. R. A. 42; 42 Am. St. Rep. 424, (and note); Livingston v. Bishop, 1806, 1 Johns. (N. Y.) 290; 3 Am. Dec. 330; Scott, "Cases on Quasi-Contracts," pp. 148-149, note.
3 "The Disseisin of Chattels," 3 Harv. Law Rev. 23, 313; same essay, "Select Essays in Anglo-American Legal History," III, 567-80. See also Professor Corbin, "Waiver of Tort and Suit in Assumpsit," 19 Yale Law Jour. 221, 242.
4 3 Harv. Law Rev. 313, 327.
If title passes upon the entry of judgment, a judgment against one converter should constitute a defense to one who subsequently buys the article from him,2 but the wrongful act of one who joined in the original conversion, or who purchased the goods from the first converter before the entry of judgment against him, does not become rightful merely by virtue of the judgment,3 unless it be held that the judgment passes title as of the date of the conversion.4