
    Wilkes v. Jackson.
    Wednesday, April 27, 1808.
    .Jo£»t Assault and Battery — Judgment against One— Effect. — A judgment for damages, in a separate action against one oí several persons who were guilty of a ioint assault and battery, is a bar to an action against the rest.
    Same -Same. — A finding in a special verdict, that T. and B. were concerned in Hie same affiray at tile same time, and that it was the same affray for which a judgment was rendered, against B. is a suiflcient finding thatT. and B. were jointly guilty of the same assault and battery.
    Ephraim Jackson brought an action of assault and battery against Thomas Wilkes, in the County Court of Brunswick. The declaration was filed Sept. 9, 1799; an office judgment by nil dicit obtained against the defendant, and a writ of inquiry awarded, which was continued *unex-ecuted, by consent of parties, until Wednesday, the 26th of May, 1801, when it was set aside, and the defendant pleaded, that, “since the last continuance of the cause, to wit, on the 25th day of March, 1802, at a Court held for the County of Brunswick, the plaintiff recovered, by the judgment and consideration of the said Court, in a certain action of trespass, assault and batte^, against a certain Bur-well Wilkes, the sum of one hundred and twenty dollars damages, and costs; and that the trespass, assault and battery, in the declaration mentioned, and supposed to have been committed by the defendant Thomas Wilkes, is one and the same trespass, assault and battery, with the said trespass, assault and battery, in the said action of the said Ephraim Jackson against the said Burwell Wilkes, and for which the said Ephraim Jackson had recovered judgment as aforesaid, and no other trespass, assault and battery;” concluding with a verification, and praying judgment in bar of the action.
    The plaintiff filed a replication, alleging, that the trespass, assault and battery in the declaration mentioned, was not the same for which the plaintiff had recovered damages in his action against Burwell Wilkes, “but a separate and distinct trespass, assault and battery, and the proper trespass, assault and battery of the defendant only.” On this replication, issue was joined, and a Jury impanelled, who found a special verdict in these words: “We of the Jury find, that the blows of Thomas Wilkes were not the blows of Burwell Wilkes. We also find, upon the admission of the defendant, that no testimony was given on the trial of the action against Burwell Wilkes, with respect to the battery by the defendant Thomas Wilkes. And we also find that both the defendant Thomas Wilkes, and Burwell Wilkes, were concerned in the same affray, at the same time, and that it was the same affray for which a judgment was rendered in this Court against Burwell Wilkes. If, upon the facts, the law be for the plaintiff, we find for the plaintiff, and assess his damages to thirty-eight pounds, and, if the law be for the defendant, we *find for the defendant. ’ ’ On this verdict, the Court entered a judgment for the defendant, from which the plaintiff appealed to the District Court, where that judgment was reversed, and a judgment entered in favour of Jackson for the sum of thirty-eight pounds, his damages assessed as aforesaid, and costs; whereupon Wilkes appealed to this Court.
    Call, for the appellant,
    relied on the cases of Ammonett v. Harris and Turpin,  and Ruble v. Turner and others,  as conclusive authorities in his favour.
    Hay, for the appellee.
    This is not a clear case on the authorities either in England or in this country. Hayden’s case does indeed shew, that where there is a joint action against several defendants who plead severally, several damages cannot be recovered : but this does not apply to the case of several actions. In 5 Burr. 2791, Lord Mansfield said, that, as the trespass was jointly charged, several damages could not be assessed; but observed expressly, that he did not meddle with the case of several actions. Where the suit is joint, the pleas several, and several verdicts for damages, there must be a choice de melioribus dam-nis: not so where the actions are several. 7 Vin. 256, citing Bulstr. p. 157. Sampson v. Cranfield, says, “the battery of one cannot be the battery of another;” and, upon principles of reason and common sense, such ought to be the rule. The case of Lana v. Santeloe,  is an express adjudication in my favour: for there, in an action for a malicious prosecution, the damages were permitted to bo severed, even though the action was joint, the defendants not having pleaded jointly.
    There is nothing against us in the cases cited by Mr. Call. In Ruble v. Turner, the only point decided was, that a release to one joint-trespasser is a bar to a suit against the rest. In Ammonett v. Harris and Turpin, the precise question here in controversy did not exist. It was a joint ^action. The release of part of the damages and receipt for the bal-anee, was a bar to the farther progress of the same action. But in no case that I have seen has it been decided, that, where there are separate actions, a judgment against one can be pleaded in bar to an action against another. If such was the law, there would be no advantage in bringing separate actions.
    But the Jury in this case have not found that the assaults and batteries were joint, or the same. They only say that it was the same affray in the court-yard; but not that the assault was jointly concerted by Bur-well Wilkes and Thomas Wilkes. They say too, that no evidence was exhibited in the suit against Burwell Wilkes of the assault and battery committed by Thomas Wilkes. It would seem from this, that, in fact, there were two distinct and separate assaults and batteries.
    Call, in reply.
    There is no battery expressly found by the Jury. To supply this, you go back to the plea which says it was the same assault and battery.
    The case of Ammonett v. Harris and Turpin settled the principle- now in controversy, upon full consideration of all the authorities. That principle is, that, in assault and battery, all are principals, and satisfaction by one is satisfaction against all. Where the action is joint, and judgment is taken, the plaintiff can proceed no farther, because he can have but one satisfaction. The same reason applies where he sues one separately: by taking judgment against that one, he tacitly admits, that this is all the satisfaction he is entitled to.
    Mr. Hay observed, that, if such is the law, there is no benefit in bringing separate actions. Neither is there, nor can there be. If the plaintiff brings separate actions, it is at his peril.
    
      
       1 Hen. & Muni. 488.
    
    
      
       Ante, p. 38.
    
    
      
       11 Go. Rep. 5.
    
    
      
      a) 1 Str. 79.
    
   *Saturday, April 30. The Judges pronounced their opinions.

.JUDGE TUCKER.

The only material question that seems to occur in this cause is, whether in an action of trespass, assault, and battery, brought against one defendant, he can plead in bar of a recovery, a judgment obtained against another defendant, for the same cause of action, in another suit.

Mr. Hay endeavoured to distinguish between this case and the cases of Ammonett v. Turpin and Harris, and Ruble v. Turner and others, in this Court, but the principle, that the plaintiff can have but one satisfaction appears to be precisely the same. And it appears from Bull. Ni. Pri. 20, who cites Yelverton 68, that it matters not, whether the recovery was had in a joint, or in a several action. 1 Esp. 318, is to the same effect.

But, it may be thought that the verdict is too uncertain as not being responsive to the issue joined between the parties. The gist of the inquiry upon this plea is whether the assault and battery charged in the plaintiff’s action against Burwell Wilkes in one and the same with the assault and battery charged in this action. The Jury have, indeed, with an apparent affectation of superior sagacity, told the Court that “the blows of Thomas Wilkes were not the blows of Burwell Wilkes.” But, if those blows were given at the same time and place, and in concert with each other, the law pronounces differently from the Jury. The Jury afterwards find that both Thomas and. Burwell were concerned in the same affray, at the same time; they then proceed to say,, that it was the same affray, for which a judgment was rendered in that Court against Burwell Wilkes. Now what is an affray? We are told that it is the fighting of two or more persons in some public; place. Now, though there may be an assault and battery, without fighting, there cannot I think be any fighting without an assault. And, if the fighting be not with missile weapons, it must also be attended with a battery. *Judge Blackstone distinguishes an affray from an assault, only from the circumstance of the-place where it happens. If in a public one, it is an affray; if in private, an assault. I therefore, think the verdict sufficiently responsive to the issue, to entitle the defendant to a judgment in his favour; and therefore that the judgment of the District Court should be reversed, and that of the-County Court affirmed.

JUDGE ROANE-

An examination of the-case of Ammonett v. Harris and Turpin, will shew that (perhaps) every Judge expressed an affirmative opinion upon the point now in question; namely, that a judgment recovered in an action against one trespasser may be pleaded in bar to an action brought against another for the same trespass: and this seems warranted by the cases there cited.

As to the prelent verdict, some ambiguity arises from its having used the word “affray:” but when we consider its true import, I think the verdict sufficiently certain. An affray is defined to be, “the fighting of two or more persons in some public place.” An affray therefore is nothing more than a public fight. If the word “fight,” or “public fight,” be read in-the verdict in lieu of the word “affray,” it will sufficiently appear, that the battery now in question is the same battery with that for which the former recovery was had. In substance, therefore, I think the verdict sufficient.

I am consequently of opinion that the judgment of the District Court is erroneous, and that judgment be entered for the defendant.

JUDGE EEEMING.

The only point respecting the merits of this case is, whether, if a trespass, assault, and battery, be committed by several, a judgment against one of them is satisfaction for the whole?

It has been decided, by the unanimous, opinion of this Court, in the case of Am-monett v. Harris and Turpin, that a recovery against one, and a receipt of the damages recovered, is full satisfaction, and precludes the plaintiff from making an-election against which of the defendants he will *take that satisfaction t but that was a case of a joint action against several defendants: and Mr. Hay, in the argument, made a distinction between that case and the one now under consideration, in which there were separate actions, and therefore insisted that the recovery against Burwell Wilkes was no bar to his action against the appellant Thomas Wilkes: but the distinction taken seems not to vary the principle; as it has been shewn by the cases already cited, that if a recovery be had in a separate action against one joint trespasser for a battery, that recovery may be pleaded in bar to an action for the same battery, brought against another.

On my first perusal of the record, however, I was doubtful whether the facts found in the verdict were sufficiently explicit to authorise a judgment thereon, and whether a venire facias de novo would not be necessary ; but, on particular attention to the definition of the word affray, made use of in the verdict, instead of the word battery, used in the pleadings, they appear to be synonymous, and my doubt is removed; so that I have, no difficulty in saying that I think the judgment of the District Court is erroneous, and ought to be reversed, and that of the County Court affirmed. 
      
       1 Hen. & Munf. p. 38.
     
      
       4 Bl. Com. 145.
     
      
       1 Hen. & Munf. 488.
     
      
       4 Bl. Com. 144.
     
      
       1 Hen. & Munf. 488.
     