
    Christian vs. Hoover.
    If several are jointly and separately liable a recovery against one separately, is no bar to a suit against any other before such first judgment is satisfied.
    The sheriff and bis deputy are jointly and separately liable, to the execution creditor, for monies collected by the deputy, and the recovery of a judgment against the deputy, is no bar to an action against the principal before such judgment is satisfied.
    This was an action of trespass on the case brought by the defendant in error against the plaintiff in error. The declaration alleges that a judgment in favor of Hoover, the defendant in error, was recovered in Davidson county court, against John D. Martin and Samuel Dickens, at October term, 1829, for five hundred and twenty-three dollars twenty-five cents, and thirteen dollars seventy-six and a half cents costs of suitj that an execution issued thereon, which came to the hands of said Christian; that he collected the money on the same before the return day of said execution, but had not the monies so made before the court at the return day, but thereon wholly made default, and that he had not paid the same to the plaintiff. To this declaration the defendant pleaded a plea of not guilty, upon which issue was taken. The jury found a verdict for the plaintiff. The defendant pleaded a second plea, in these words, “actio non, because the said execution did not come into the hands of said Christian, but came into the hands of Daniel Mading, his deputy, without his, defendant’s, notice, and that said sums of money, if collected, did not come into the hands of defendant, but into the hands of Daniel Mading, without notice upon the part of defendant, and that said neglect, if committed, was committed by Daniel Mading, and after the said neglect of said Daniel Mading, he was impleaded in assumpsit in Davidson county upon promises, undertaking and contracts made, &c. for the payment of the very identical sum of money now sued for, and a judgment recovered therefor against said Mading, which is in full force,” &c. The plea contained no averment of satisfaction of the judgment against Mading. To this the plaintiff demurred generally, in which the defendant joined. The circuit court sustained the demurrer and gave judgment for the plaintiff upon the verdict of the jury. The defendant prosecuted an appeal in the nature of a writ of error from the judgment of the circuit court to this court.
    Read, for the plaintiff in error,
    made two points in the case.
    1st. That the neglect complained of has been waived.
    2d. That upon the contract with the deputy, the deputy became bound, and though plaintiff upon that contract might have had the right of election to sue either principal or deputy, having made that election, he is' bound by it. Cro. Jac. 73.
    As to the first point, it is laid down in 1 Chitty, 88 — 90, that plaintiff may waive the tort and bring as-sumpsit; and same book, page 90 — 92, that assumpsit will lie for breach or neglect of duty.
    2d. That a deputy may become liable to an action upon promises. See 7 Johns. Rep. 470.
    It is no answer to say that the waiver was not made with the principal. It was made with him who made the default, and so great is the privity between principal and deputy, that the benefit which the latter derives from it cannot be excluded from the former; and this principal is’ carried so far that the law will not permit a servant in default to be a witness for the master, for which see Philips’ Ev. 46. Nor, upon the same principle, will it permit the admissions of the agent to be evidence against the master. And moreover, in 3 Wilson, 317, Saunder-son vs. Baker, Chief Justice Blackstone unequivocally says and applies the doctrine to the very case, in principle, before this court, that the sheriff and all his officers in tortuous cases are considered as one person.
    That a plaintiff is bound by his election, see the case of Rawson vs. Turner, 4 John. Rep. 469 — 474: also 13 John. Rep. 121, and 1 Comyn’s Dig. “Action,” 231.
    
      Wm. Stoddart, for defendant in error.
   Catron, Ch. J.

delivered the opinion of the court.

The deputy sheriff was recovered against, on the allegation of an express promise to pay the money collected to the creditor, but there was no satisfaction of the judgment.

The principal sheriff was originally liable to the action of the creditor, and the question is, did the recovery against the deputy bar that right of action ?

For the defendant, it is insisted, that upon the contract with the deputy he became bound, and though the plaintiff had the right to sue either principal or deputy, having made his election he is bound by it.

This position is rested on the case of Brown vs. Walton, (Cro. Jac. 73,) which was an action of trover for goods, and the defendant pleaded a judgment in behalf of the plaintiff against one J. S., for the same goods, without averring satisfaction, and the plea was held good.

This case, in Cro. Jac., is attempted to be met on the other side, with what is said in Livingston vs. Bishop, (1 John. Rep. 290,) where its authority is questioned. This we apprehend to have been hastily done. When trover is brought and recovery had, the right of the property sued for is vested in the defendant; the plaintiff having no right of property, of course no remedy exists for a conversion by another. 6 Co. 45: 1 Com. Dig. 230: Hostler vs. Skull, Taylor’s Reports, 152: 1 Chit. Pl. 48.

Yet this'furnishes no rule to govern the present cause Christian had no title to property confirmed in him, by the recoveryagainst Mading, and was liable for the demand, as if he had been the maker of a bill, and Mading the endorser, in which case a recovery without satisfaction is no bar. 1 Com. Dig. 234, action L, 4. The general rule is, that where several are jointly liable, or separately, as in this instance, a recovery against one, is no bar to a suit against any other, before satisfaction of the first judgment. 1 John. Rep. 290. The present cause falls within this rule. The judgment will be affirmed.

Judgment affirmed.  