
    Richmond.
    Petticolas v. City of Richmond.
    December 16, 1897.
    Absent, Riely and Cardwell, JJ.
    1. Joint Trespass — Judgment Against One of Several Trespassers. — A judgment against one of several joint trespassers, whether satisfied or not, is a bar to any action against the co-trespassers.
    Error to a judgment of the Law and Equity Court of the city of Richmond, rendered June 22, 1895, in an action of trespass on the case, wherein the plaintiff in error was the plaintiff, and the defendant in error was the defendant.
    
      Affirmed.
    
    The plaintiff was the owner of a lot abutting on Eighth street, in the city of Richmond, which was damaged by the caving in or cracking of the land in consequence of insufficiently supporting a tunnel constructed under said street by the Richmond & Chesapeake Railroad Company. The declaration alleged the digging of the tunnel under the street under the authority of the city, and charged that it became and was the duty of the city to superintend and inspect the construction of the tunnel, and to require of the railroad company due and proper care in the construction of the tunnel, and in providing proper support for the superincumbent earth, and averred that the city had neglected its duty in that behalf, and had carelessly and negligently superintended and inspected the construction of the tunnel, and carelessly and negligently permitted the railroad company to construct the tunnel under the street along and opposite the land of the plaintiff, without using due and proper care and caution to provide proper supports to sustain the super-incumbent earth, in consequence whereof the earth, in and along Eighth street, near the point where the plaintiff’s land abutted on said street, fell in and sank about six feet, causing the plaintiff’s land to sink about one foot, and the dwelling house of the plaintiff on said land to become unsettled and thrown out of plumb, and the walls thereof cracked and injxu’ed.
    The defendant pleaded the general issue and the statute of limitations, and also filed a special plea. The special plea was in the following words and figures:
    “And for a further plea as to the breaking and entering the said close in which, &c., and the treading down, trampling upon, digging into, removing and carrying away the said earth, dirt, gravel, stone, grass and herbage, as in the declaration in this case is supposed to have done, the said defendant says that before the institution of this case, to-wit: on the 7th day of July, 1892, at the Circuit Court of the city of Richmond, the plaintiff recovered, by the judgment and consideration of the said court, in a certain action of trespass on the case against the Richmond & Chesapeake Railroad Company, being the company mentioned in the declaration in this cause, the sum of five hundred and sixty-three dollars and thirty-three cents and costs — that on said judgment the said plaintiff had issued from the said court, before the institution of this cause, two writs of fieri facias, one on a certain day, to-wit: on the 28th day of July, 1892, and the other on a certain other day, to-wit: on the first day of February, 1893, and that the trespasses and premises mentioned in the declaration in this case, and supposed to have been committed under the supervision or direction of the said city of Richmond, or by the said city of Richmond, by and through its agents, or employees, are the same trespasses and premises with the trespasses and premises in the said action of the said plaintiff against the said company, and for which the said plaintiff had recovered judgment as aforesaid, and on which they had issued the two writs of fieri facias as aforesaid and no other trespasses or premises.
    “And this the said defendant is ready to verify.”
    The plaintiff objected to the filing of this plea, but the objection was overruled, and he excepted. He then demurred, but the demurrer was overruled. Thereupon he replied that the writs of fieri facias mentioned in the plea had been returned “no effects.” To this replication the defendant demurred. The court sustained the demurrer, and entered judgment for the defendant, and the plaintiff applied for and obtained this writ of error.
    
      Pollard & Sands, for the plaintiff in error.
    
      C. V. Meredith, for the defendant in error.
   Buchanan, J.,

delivered the opinion of the court.

The only question to be decided on this writ of error is whether the plea filed by the defendant that the plaintiff had theretofore recovered a judgment against a co-trespasser for the same trespass or cause of action was sufficient, without avering that the judgment had been satisfied.

It is impossible to hold that such an averment was necessary without, overruling the case of Wilkes v. Jackson, 2 Hen. & Munf. 355, and disregarding the common law doctrine upon the subject as understood in England as well as in this State.

It is insisted that the decision in Wilkes v. Jackson is in conflict with the great weight of American authority and wrong in principle, and that it was decided without much consideration. It is true, that most of the decisions of the courts of this country which have passed upon the question, including the Supreme Court of the United States, are in conflict with that decision. There is no foundation, however, in our judgment, for the suggestion that the case was not much considered, and that the case of Ammonett v. Harris, 1 Hen. & Munf. 488, to which it refers as settling the principle governing both cases, does not sustain it.

These cases were decided by the same judges, with one exception in each case, and within six months of each other. Both cases were argued by very able counsel. In the earlier case most, if not all, the English authorities were cited and commented on. In each case all of the judges delivered opinions, which, when the two cases are considered together, show that the question of the right of a plaintiff to recover more than one judgment for a joint trespass, whether his action be joint or several, was examined with much care and learning, and the conclusion reached that only one final judgment could be rendered in a joint action, although there were several verdicts, and that a judgment against one trespasser may be pleaded in bar to an action brought against another for the same trespass, although there was no averment in the plea that the judgment had been satisfied.

If the conclusions reached in those cases were erroneous, it was not because the judges (distinguished alike for ability and fidelity) did not give the questions involved proper consideration, but because they fell into the same error, if it be error, that Baron Comyns, Baron Park, and other great English common law judges and lawyers fell into when they declared that such was the common law rule, and which the courts and judges of England are still laboring under, for we find that the Court of Exchequer in 1812, in the case of Brinsmead v. Harrison (L. R.), 7 C. P. 552, decided the precise question involved in Wilkes v. Jackson the same way. In that case, Kelly, C. B., after citing Brown v. Wooton, Yelv. 67 (cited and relied on in Ammonett v. Turpin and Wilkes v. Jackson), said: “This appears to me to be satisfactory and binding authority, and the more so because I find that one hundred and fifty years afterwards it is quoted in a book of tbe highest authortiy, viz., Comyns’ Digest, which alone would make it a satisfactory guide for us on the present occasion. But it does not stop there, for I find that Brown v. Wooton, and all the older cases are referred to in King v. Hoare, 13 M. & W. 494, where the question was fully and elaborately considered in the Court of Exchequer, .and a judgment pronounced by one of the most learned judges that ever sat in Westminster Hall. It is unnecessary to go through the enlightened reasoning of that very learned person. Suffice it to say that he deals with the whole law upon the subject. * * * * There being then this series of authorities, satisfactory of themselves, and having the sanction and approval of Chief Baron Comyns and Lord Wensleydale, notwithstanding the respect we entertain for the opinions and decisions of the American courts, where a different view of the law seems to be •entertained, I think we are bound to follow those of our own ■courts, and to hold that, upon principle as well as upon authority, this plea is a good answer to the action; and consequently the defendant is entitled to judgment.”

We have neither the right nor the inclination ^^verrule the decision in the case of Wilkes v. Jackson. It" was decided nearly a century ago. It is in accord with the common law doctrine upon the subject as understood and administered in the English courts before and since that decision was made. It has been referred to with approval in our own courts ([Wells v. Jackson, 3 Munf. 459 and Brown v. Johnson, 13 Gratt. at page 651) and seems to have met with the approval of the bar and the legislature, as no effort, so far as we know, has ever "been made to change the law as laid down in that case, although the legislature has made changes in a like rule of the common law, that a judgment recovered against one joint obligor was a bar to an action against another, on the same contract.

There is no error in the judgment complained of, and it must be affirmed.

Affirmed.  