Art. 19. Joint Tort Feasors.

The latter proposition is reiterated in Conde v. Hall, 92 Hun, 337, 37 N. Y. Supp. 411, opinion Vann, J., citing Lord v. Tiffany, 98 N. Y. 412, upon same point; Brogan v. Hanan, 55 App. Div. 92, and cases cited, p. 93, 66 N. Y. Supp. 1066.

Woods v. Pangburn, 75 N. Y. 495 (498): There can be but one recovery against the same person for the same cause of action (Sheldon v. Carpenter, 4 N. Y. 579); and there can be but one satisfaction got from several persons for the same cause of action; that is, for a single injury, though there may be several recoveries. Thomas v. Rumsey, 6 Johns. 26; Livingston v. Bishop, 1 Johns. 290. Two may join in one wrongful act, and the injury is single, though their act is joint; and there can be but one satisfaction therefor, though there may be two actions brought, and a recovery in each."

Satisfaction by one joint tort feasor has always been held to be available as a bar to an action against another. This rule applies with equal reason to a partial satisfaction by one of the wrongdoers for the damages occasioned by the joint wrongful act of both. Such evidence is proper in mitigation of damages, and under the former practice was admissible under the general issue. Knapp v. Roche, 94 N. Y. 329 (334), and authorities cited.

Where there is joint indebtedness (not a joint and several) a judgment recovered against two or more joint tort feasors merges the original debt in the higher security of the judgment and no action can thereafter be maintained against any of the other defendants, even though no satisfaction is received of the judgment against the one debtor. But a judgment against one wrongdoer, unsatisfied, is not a bar to the maintenance of an action against the other. Russell v. McCall, 141 N. Y. 437 (450).

Although a plaintiff may have a verdict and judgment in separate actions against joint tort feasors, he can have but one satisfation which is operative as to both, but he may have, however, the costs in all the actions, but when these several sums are paid, neither the principal debtor nor his surety should be further vexed. Lord v. Tiffany, 98 N. Y. 412 (421).

A judgment against one joint trespasser is no bar to a suit against another for the same trespass; nothing short of full satisfaction, or that which the law must consider as such, can make such judgment a bar. Part payment upon the judgment is not full satisfaction. Lovejoy v. Murray, 3 Wall. 1, cited and fo!

Art. 19. Joint Tort Feasors.

lowed in The Atlas, 93 U. S. 315; The Beaconsfield, 115 U. S. 303; Birdsell v. Shaliol, 112 U. S. 489.

If, after recovery and satisfaction for one slanderous utterance or libelous publication, the same defamatory matter is uttered or published again by the wrongdoer, this is a new injury and another cause of action, and there may be another recovery and satisfaction from him. So if, after a recovery against two jointly, one of them repeats the wrong, there may be another recovery, and a satisfaction of the former recovery is not a satisfaction of the latter. Woods v. Pangburn, 75 N. Y. 495.

SUBDIVISION 3.

No Contribution between Wrongdoers.

If one of several persons liable for a wrong is proceeded against and compelled to make reparation, the law will give him no assistance in securing contribution from the others. Cooley Elements of Torts, 42, citing Merryweather v. Nixan, 8 T. R. 186.

Equity will not interpose to enforce a contribution between wrongdoers, especially where they do not stand in equal right, or there is not equal equity between them. Peck v. Ellis, 2 Johns. Ch. 130, 131, citing English authorities to the proposition that a court of law will not sustain an action between two joint trespassers for contribution.

Wrongdoers are not entitled to claim of contribution against each other, although the party injured obtained full satisfaction for his damages, or a part of them only. Miller v. Fenton, 11 Paige, 18.

The rule holds in equity as well as at law that there shall be no right in contribution between joint wrongdoers. This rule is founded in public policy and intended to check the disposition to combine in committing rights by declaring each individual concerned is liable to bear the whole loss or damage which may be occasioned; and if a servant or agent commits a trespass ignorantly upon an express promise of indemnity, the promise may be enforced, but if the wrongdoer knows the act to be unlawful he cannot enforce the promise. Pierson v. Thompson, 1 Edw. Ch. 212; Coventry v. Barton, 17 Johns. 141.

That equity will not interfere to enforce contribution between wrongdoers is also held in Thorp v. Amos, 1 Sandf. Ch. 26 (34); Andrews v. Murray, 33 Barb. 354 (365).

Art. 19. Joint Tort Feasors.

The policy of the law is to leave wrongdoers without aid in equity from burdens of the position in which they have placed themselves. The rule is well settled that as among themselves equity will not compel contribution or enforce subrogation. Gilbert v. Finch,.173 N. Y. 455 (462).

In Jacobs v. Pollard, 10 Cush. 287, the question is considered as to contribution among the joint, tort feasors when they neither know, nor can be presumed by law to know, that a legal wrong was being committed, citing numerous authorities. Bigelow, J., says: "It has, therefore, been held that the rule of law, that wrongdoers cannot have redress or contribution against each other, is confined to those cases where the person claiming redress or contribution knew, or must be presumed to have known, that the act for which he has been muleted in damages was unlawful. Lord Kenyon, in the leading case of Merryweather v. Nixan, 8 T. R. 186, suggests this distinction, which the recent cases have more fully developed, and the rule is now always held subject to the limitations above stated. Betts v. Gibbins, 2 A. & E. 57, 65 (29 E. C. L. 47); Pearson v. Skelton, 1 M. & W. 504; Adamson v. Jarvis, 4 Bing. 72 (13 E. C. L. 403); Wooley v. Battle, 2 C. & P. 417 (12 E. C. L. 649); Humphreys v. Pratt, 2 Dow. & Cl. 288, 2 Saund. Pl. & Ev. (2d ed.) 413, 414; Coventry V. Barton, 17 Johns. 142; Avery v. Halsey, 14 Pick. 174. See also Battersey's Case, Winch. 49.

In dissenting opinion, per Folger, J., in Jones v. Barlow, 62 N. Y. 202, it is said that there is no contribution among wrongdoers. But the rule is not applied where one is a tort feasor only by inference of law and is confined to cases where one knows, or is presumed to know, that he is committing an unlawful act.

Where damages are not capable of exact pecuniary measurement, but must be left to the discretion of the jury, evidence of the circumstances of the wrong addressed to the jury for the purpose of influencing its estimate is said to be in aggravation or mitigation of damages. Hale on Damages, 107.

This view is sustained in Nashau Iron & Steel Co. v. Worcester, etc., N. R. Co., 62 N. H. 159, cited in Cooley Elements of Torts, 43; Avery v. Halsey, 14 Pick. 174; Gray v. Boston Gas Light Co., 114 Mass. 149; Churchill v. Holt, 127 Mass. 165, 131 Mass. 67; Armstrong County v. Clarion County, 66 Pa. St. 218, cited in Hale on Torts, 124. See Coventry v. Barton, 17 Johns. 142;

Art. 19. Joint Tort Feasors.

Nelson v. Cook, 17 Ill. 443; Atkins v. Johnson, 43 Vt. 78, 5 Am. Rep. 260.

There are many cases in which though two or more persons are wrongdoers in contemplation of the law as between themselves and third person, yet only one of them was in fault for the injury done, and if another has been compelled to make compensation his claim to indemnity from the one for whose fault he has paid may be perfectly reasonable and just. Cooley Elements of Torts, 43, citing Mainwaring v. Brandon, 8 Taunt. 202; Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647.

In Gilbert v. Finch, 173 N. Y. 455, the liability of joint tort feasors is considered, and it is held that wrongdoers are not entitled to compel contribution or to enforce subrogation. The effect of release of one of the joint tort feasors is considered, and it is held (pp. 463, 466) that in England the modern authorities are uniform upon this question to the effect that as between joint debtors and joint tort feasors a release given to one releases all, but if the instrument contains a reservation of the right to sue the other joint debtor or joint tort feasor, it is not a release, but in effect is a covenant not to sue the person released, and a covenant not to sue does not release a joint debtor or a joint tort feasor. That the decisions in this State are in accord with the English rule and in harmony with our statute in reference to joint debtors.

III. Judicial and quasi-judicial officers and pro

ceedings

IV. Public officers

165

169

171

180

V. Acts of necessity and inevitable accident.... 189 VI. Exercise of common-law and statutory rights. 193 VII. Consent as affecting right of action........ 198

ARTICLE I.

ACTS OF STATE.

It may be stated as a general rule that if the legislature, acting within its constitutional limitations, directs or authorizes the doing of a particular thing, the doing of it in the authorized way and without negligence cannot be wrongful; if damage results as a consequence of its being done, it is damnum absque injuria, and no action will lie for it. 8 Am. & Eng. Encyc. of Law, 697. "It may be accepted as a point of departure unquestioned," said Mr. Justice Miller, in Cunningham v. Macon & Brunswick R. R. Co., 109 U. S. 446, 451," that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution." Cited in Hans v. Louisiana, 134 U. S. 1 (17). .

It is held in the same case, citing Curran v. Arkansas, 15 How. Pr. 304; Clark v. Barnard, 108 U. S. 436, that a State may be sued by its own consent. To the same point is Beers v. Arkansas, 20 How. 527, opinion Chief Justice Taney; Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, 101 U. S. 832; In re Ayers, 123 U. S. 433.

The language of Chief Judge Taney in Beers v. State of Ar

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