
    Risdon Knott vs. C. P. Cunningham.
    1. Limitations. Statute of. Relates to the form, of action. Acts of Í850, ch. 141, and 1115, ch. 2*7, § 5. By the act of 1850, eh. 141, the common law rules as to certain actions have' been so for changed, that in all cases where an action of trespass would lie, it is lawful to bring either trespass, or trespass on the case, at the election of the party. So, in an action of trespass on the case for personal injuries, the defendant cannot rely upon a plea of the statute of limitations of one year, as in trespass vi et armis, under the act of P715, ch. 21, § 5. The limitation depends upon the form of the action.
    2. Trespass. Action of, may le maintained against each of several co-trespassers. An action may be maintained against each' of several persons who jointly committed a trespass, and a judgment against one joint trespasser, without satisfaction, is no bar to an action against a co-trespasser. The plaintiff may proceed to judgment against each in his several actions, but he can enforce but one satisfaction for the same injury except for costs, in the respective cases, which he may enforce the collection of by execution. In such case the plaintiff may elect his satisfaction either out of the most solvent of the parties — or the larger judgment — and such election and satisfaction will forever preclude him from proceeding against either of the other defendants.
    FROM BEDFORD.
    This was an action of trespass on the case brought by Cunningham against Knott, in the circuit court of Bedford. It seems that Knott and one Smalling were racing their horses along a public road, and overran the defendant, Cunningham, and inflicted serious injuries upon himself and his horse, which resulted in the death of his horse. This was the foundation of this suit, which was commenced on the 28th of March, 1853. The defendant pleaded the statute of limitations of one year; and, also, that the plaintiff had already recovered a judgment against his co-trespasser, Smalling, for the same cause of action, which “said judgment remained in full force, not reversed, vacated or satisfied.” To both of these pleas the plaintiff demurred, and the court sustained the demurrer to each. At the April term, 1854, the cause was submitted to a jury of Bedford, before judge Davidson, and resulted in a verdict for the plaintiff of $140 damages, and judgment thereon, from which the defendant appealed in error to this court.
    E. A. Kbeble, for the plaintiff in error,
    said:
    The plea of a former recovery of damages for the same trespass against B. Smalling, and taking judgment on said verdict, is a complete bar to the present action. Davis vs. Ohance, 2 Yerg. Rep., 94.
    The assessment by the jury of several damages against several defendants, charged in the same suit, with any trespass, whether théy join or sever in their pleas, will render the judgment erroneous, unless plaintiff enters a nolle ¡prosequi as to all, except this one he takes judgment against first. 1 Saunders, 207, «, note 2.
    The statute of limitations of one year is a good bar to the action. Act 1715, ch. 27, § 5, 1ST. & 0., 439.
    
      A single act of trespass cannot be divided, so as to bring two suits, for the same canse of action. Farring-ton vs. Smith, 15 Johnson, 432.
    Ed. Coopee, for the defendant in error,
    said:
    1. The action may well be sustained upon the proof in the record. See acts of 1849, 1850, page 345.
    2. The demurrer of the defendant in error to the special plea of former recovery against co-trespasser, was sustained by the court below. In this there was no error.
    It is necessary in a plea of former recovery, that it should be alleged in the plea, that the plaintiff had received the amount recovered against the co-trespasser, in the other action, before it can be pleackün lar of the present action. See 1 Johns. Hep., 290; 16 Johns. Hep., 215. 7 Cowen Hep. 8 Cowen Hep. Where
    it is well settled, both upon reason and authority, that the mere recovery of a separate judgment against one trespasser, is no satisfaction of the trespass, unless the judgment has been paid, or otherwise satisfied. Separate actions can be sustained against several trespassers, and the mere recovery of a judgment does not bar the right of action, or the prosecution of the action to judgment, against the other trespassers. See authorities already cited.
    3. The case in 2 Yerger, 94, 96, does not conflict with the view here presented — the facts in the case show that it was attempted by the plaintiff to recover of one [ of the trespassers, against whom he had already, a judgment for a. certain amount, a larger sum, because the jury had afterwards returned a much larger verdict against one of the co-trespassers — and the court correctly, decide, that this could not he done — but that the plaintiff might elect, which judgment he would collect, as against the trespassers.
    4. The language used by the court, that there can' be but one judgment for every trespass, evidently has reference alone, to the person against whom the judgment had been recovered, not to the offence where committed by several trespassers.
    5. Again: Ii Cunningham has a right to a recovery, against eaoTi trespasser, for the wrong committed by them, then he has the right to elect which judgment he will collect, and the recovery of the one judgment is no answer, to the recovery of another against a ■ different trespasser. See 2 Terg., 94, 96. 6 Humph., Ill, 113.
    6. This being an action of trespass on the case, the statute of limitations, of one year, does not apply; and therefore the demurrer' to that plea was well taken, and the action of the court correct.
   MoKnsraranr, J.,

delivered the opinion of the court.

This was an action of trespass on the case, brought by Cunningham against Knott in the circuit court of Bedford. The plaintiff recovered judgment for one hundred and forty dollars damages; and to reverse this judgment an appeal in error has been prosecuted to this court.

The gravamen of the action is, that the defendant, Knott, and one Smalling, in running their horses for a wager, upon the public highway, ran against the horse on which the plaintiff was riding, whereby the plaintiff was thrown from his horse, and greatly bruised and injured, and his horse was killed.

The defendant, among other pleas, pleaded that the plaintiff had brought an action against said Smalling, in the circuit court of Bedford, for the same identical cause of action; and at the August term, 1852, of said court, had recovered a verdict and judgment against said Small-ing for $145 60. And this judgment, the plea avers, remains in its full force, not “reversed, satisfied, or made void.”

The defendant also pleaded the statute of limitations, “not guilty of the supposed trespass within one year before the commencement of the action.”

To each of these pleas there was a demurrer, which were sustained: and in this, the supposed error consists. ■

1. The plea of the statute of '•'•one year'1'' cannot apply in this case. It is true, that on common law principles, the injury complained of' in the declaration constitutes the proper ground of an action of trespass vi et ar-mis, and not of trespass on the case. But by the act of 1850, ch. 141, the common law upon this subject is changed. It enacts: “ That in all cases where an action of trespass would lie, by the existing law, it shall be lawful to bring an action of trespass on the case, ox-trespass, at the election of the party.” Under this statute, the present action is brought in case. With reference to the statute of limitations, this is an important change in the law. By the act of 1715, ch. 27, § 5, the limitation depends on the form of the action. In actions of trespass on the case, the period required to form the bar is three, years: Whereas, in an action of trespass vi et armis, for injuries to the person or personal property, the period is only one year. In this view, the plea of the statute of limitations of one year was improperly pleaded.

2. It is supposed the court erred in sustaining the demurrer to the plea, whieh sets up the recovery against S mailing, in bar of this action.

This plea assumes that, if an action be brought, and a judgment recovered against one of several persons who jointly committed a trespass, the judgment recovered in such case, without satisfaction, is a bar to an action against the others. And this doctrine is sanctioned by some of the authorities; but other authorities maintain, and upon sounder and more consistent principles, that a judgment against one joint trespasser, without satisfaction, is no bar to an action against a co-trespasser; and such is the settled course of decision in this State.

The law distinguishes between wrongs which, in their nature, may in legal contemplation be committed by several concurrently, and such as may not. The former, according to all the authorities, are regarded as sevei’al as well as joint; the wrong being in its nature the separate act of each individual.

The authorities relied upon in support of the plea, seem to hold, that if the plaintiff elects not to sue the the wrong doers jointly, he may single out any one of them, and sue him separately, and proceed to judgment and execution against him alone; but that this will preclude the plaintiff from proceeding against either of the other parties. This doctrine proceeds upon the principle that, whether the action he against all, or only against one of the several wrong-doers, damages must be assessed commensurate with the entire injury sustained by the plaintiff: and that the judgment of itself, without regard to the question of satisfaction, constitutes a bar.

The more reasonable doctrine, on the other hand, is, that as each of the wrong-doers is- liable for his own act, separate actions may be brought at the same time, or successively, against each of the several trespassers: in each of which the plaintiff may proceed to judgment. But as he can claim or enforce only one satisfaction for the same injury, he must elect against which of the several he will proceed to execution for the satisfaction of. his damages. If the several assessments vary in amount, he may elect to take the larger sum, or if the defendants be not all solvent, he maj elect to proceed against the solvent party. And such election, followed by actual satisfaction of that particular judgment, will preclude the plaintiff from proceeding against either of the other defendants, upon the judgments recovered against them, except for the oosts in the respective cases, which he may enforce the collection of by execution.

In this view of the case, there is no error in the record, and the judgment will be affirmed.  