H

Participation by Attorneys. An attorney who delivers a writ to an officer for service does not personally assume any responsibility in respect thereto, except to this extent, that he is understood as directing the officer to proceed to obey the command of the writ. If, therefore, the writ is illegal, and the officer makes himself a trespasser in serving it, the attorney is liable as joint trespasser with him.' But if the officer exceeds the command of the writ, or does anything which its command, if legal, would not justify, the attorney is not responsible, unless he counsels or assists in it, in which case his liability rests upon the same ground as that of any other participant in a trespass. If an attorney sues out an illegal writ, the party for whom he acts is so far identified with him in the proceedings that he is responsible for what is done under it; but the plaintiff is not responsible for any illegal action taken or directed by the attorney which the plaintiff did not advise, consent to, [*132] or participate in, and which was not justified by any authority he had given."

Wrongs by Deputies. Whenever an officer is authorized by law to appoint a deputy who shall be empowered to perform his

15 N. Y. 409, 413; Root v. Chandler, 10 Wend. 110; Knight v. Nelson, 117 Mass. 458; Lewis . Johns, 34 Cal. 629; Crossman v. Owen, 62 Me. 528. It may be done in much less formal manner. See Bishop v. Viscountess Montague, Cro. Eliz. 824.

'Burnap v. Marsh, 13 Ill. 535.

Seaton . Cordray, Wright (Ohio), 102; Averill v. Williams, 1 Denio, 501; Adams v. Freeman, 9 Johns. 118; Vanderbilt . Turnpike Co., 2 N. Y. 479; Ford v. Williams, 13 N. Y. 577; Cook v. Hopper, 23 Mich. 511.

*Hardy . Keeler, 56 Ill. 152; Cook . Hopper, 23 Mich. 511.

Barker v. Braham, 3 Wils. 368; Bates v. Pilling, 6 B. & C. 38; Foster . Wiley, 27 Mich. 244; S. C. 15 Am. Rep. 185; Newberry o. Lee, 3 Hill, 623; Armstrong v. Dubois, 4 Keyes, 291. A plaintiff may be liable for his attorney's arresting a man on ex

ecution without express instruction, from him. Shattuck v. Bill, 142 Mass. 56; Guilleaume v. Rowe, 94 N. Y. 268. See Gearon v. Bank, 50 N. Y. Super. Ct. 264.

5 Freeman v. Rosher, 13 Q. B. 780; Ferguson v. Terry, 1 B. Mon. 96; Adams v. Freeman, 9 Johns. 118; Fox v. Jackson, 8 Barb. 355; Welsch v. Cochran, 63 N. Y. 181; S. C. 20 Am. Rep. 519. On the other hand an attorney is not to be charged with participation in the evil intention of his client from the mere fact that he acts as attorney in a matter in which the client acts fraudulently. McKinney v. Curtiss, 60 Mich. 611. Nor in malicious prosecution from knowledge of his client's malice alone. Otherwise if he also knows there is no probable cause. Peck v. Chouteau, 91 Mo. 138; Staley v. Turner, 21 Mo. App. 244.

official duties, the rule is general that the principal shall respond for all the deputy's misfeasances or nonfeasances, while he acts by color of his appointment. Taking the case of the sheriff as an illustration, the rule is laid down very clearly in the numerous cases cited in the margin, that the sheriff is liable to the plaintiff in the writ for the deputy's misconduct or neglect to his injury.1 But he is also liable for the deputy's misfeasances and nonfeasances which injure the defendant' or any third person." Nevertheless, the fact that the sheriff is responsible does not relieve the deputy, who is equally liable with the sheriff for all his positive misfeasances; but when a mere neglect to perform an official duty is complained of, only the sheriff can be sued, because only upon him does the official duty rest.

General Rules of Joint Liability. Proceeding now to a particular examination of the rules of liability where the [*133] fault is *legally or otherwise chargeable to more than one person, it will be convenient to classify the wrongs into

Blunt. Sheppard, 1 Mo. 219; Marshall v. Hosmer, 4 Mass. 60; Esty . Chandler, 7 Mass. 464; M'Intyre v. Trumbull, 7 Johns. 35; Curtis v. Fay, 37 Barb. 64; Pond v. Leman, 45 Barb. 152; Mason v. Ide, 30 Vt. 697; Seaver

. Pierce, 42 Vt. 325; Stimpson v. Pierce, 42 Vt. 334; Whitney v. Farrar, 51 Me. 418; Remlinger v. Weyker, 22 Wis. 383; Clute v. Goodell, 2 McLean, 193; Prosser v. Coots, 50 Mich. 262; Grabenheimer v. Budd, 3 South. Rep. 724 (La). He may be liable after his term has expired for acts of a deputy to whom he has turned over an unexecuted writ. Ross v. Campbell, 19 Hun, 615. He is liable for disobedience of instructions, though in good faith, by the deputy. Smith

. Judkins, 60 N. H. 127. He is not liable for the default of a special deputy selected by the plaintiff. Skinner v. Wilson, 61 Miss. 90, and see pp. *397-8 post.

Woodgate v. Knatchbull, 2 T. R. 148; Grunnell v. Phillips, 1 Mass. 529; Knowlton v. Bartlett, 1 Pick. 270.

See Morgan v. Chester, 4 Conn. 387;
Waterbury v. Westervelt, 9 N. Y. 598.

Ackworth v. Kempe, Doug. 41; Campbell v. Phelps, 17 Mass. 244; Norton v. Nye, 56 Me. 211; Rider . Chick, 59 N. H. 50. But the sheriff is not liable to a third party who is merely injured as surety for the defendant by some misconduct of the deputy. Harrington v. Ward, 9 Mass.

251.

4 Purrington . Loring, 7 Mass. 388; Ross v. Philbrick, 39 Me. 29; Remlinger v. Weyker, 22 Wis. 383.

5 Cameron v. Reynolds, Cowp. 403; Hutchinson v. Parkhurst, 1 Aik. 258; Buck v. Ashley, 37 Vt. 475; Armistead v. Marks, 1 Wash. (Va.) 325; Rose v. Lane, 3 Humph. 218; Paddock ♥. Cameron, 8 Cow. 212. The rule seems to be different in Massachusetts. Draper v. Arnold, 12 Mass. 449. On his special promise to pay money collected on execution the deputy may be held. Tuttle v. Love, 7 Johns. 470; Rose v. Lane, 3 Humph. 218; Abbott v. Kimball, 19 Vt. 55.

those of intent and those not of intent, inasmuch as the existence of wrongful intent is in many cases of the highest importance.

1. Wrongs Intended. Where several persons unite in an act which constitutes a wrong to another, intending at the time to commit it, or doing it under circumstances which fairly charge them with intending the consequences which follow, it is a very reasonable and just rule of law which compels each to assume and bear the responsibility of the misconduct of all.' To require the party injured to ascertain and point out how much of the injury was done by one person and how much by another, or what share of responsibility is fairly attributable to each as between themselves, and to leave this to be apportioned among them by the jury according to the mischief found to have been done by each, would, in many cases, be equivalent to a practical denial of justice. The law does not require this, but on the other hand permits the party injured to treat all concerned in the injury as constituting together one party, by their joint co-operation accomplishing certain injurious results, and liable to respond to him in a gross sum as damages."

2

But while the law permits all the wrong-doers to be proceeded against jointly, it also leaves the party injured at liberty to pursne any one of them severally, or any number less than the whole, and to enforce his remedy regardless of the participation of the others. While the wrong is joint it is also in contemplation of law several; the wrong of one man in beating another is not the less his personal wrong because of a third person having held the assaulted party while another delivered the blows, or because still others stood by, and by force or threats pre

'Miller. Fenton, 11 Paige, 18; Nelson. Cook, 17 Ill. 443; Turner

Hitchcock, 20 Iowa, 310; McMannus . Lee, 43 Mo. 206, Wallace v. Miller, 15 La. Ann. 449; Lewis o. Johns, 34 Cal. 629; Shepherd v. McQuilkin, 2 W. Va. 90; Woodbridge v. Conner, 49 Me. 353; Brown v. Perkins, 1 Allen, 89; Barden . Felch, 109 Mass. 154; Johnson v. Barber, 10 IIL 425.

'Page . Freeman, 19 Mo. 421;

Wright o. Lathrop, 2 Ohio 33; Hawkins v. Hatton, 1 N. & McC. 318; Knickerbacker v. Colver, 8 Cow. 111; Knott . Cunningham, 2 Sneed, 204; McGehee . Shafer, 15 Texas, 198; Turner . Hitchcock, 20 Iowa, 310; Wheeler v. Worcester, 10 Allen, 591. A provocation received by one may be proved in mitigation of damages. in an action against several defendants for a joint assault. Davis v. Franke, 33 Gratt. 413.

[*134] vented *the intervention of the police. The officer who serves a void writ is not the less an individual wrong-doer because of the magistrate being liable for having issued it. And while in such cases the person injured may pursue all, so he may pursue any number of those who are legally chargeable with the wrong; if one is sued alone, it is no defense to him that others are not brought in to share the responsibility; if all are sued, one cannot excuse himself by showing the insignificance of his participation as compared with that of others.' The rules regarding remedies which are applied to breaches of contracts are obviously inapplicable here. When contracts are distinct, though they may be as intimately related as are contracts for the different classes of work on the same building, the breach of both cannot be redressed in the same suit, because neither contractor is legally concerned with the conduct of the other, and to unite a controversy with each in one action would only breed confusion and difficulty, since the issues must be distinct, and separate results must be reached in the judgment. On the other hand, if two jointly undertake the work, it is the right of both to be made parties when complaint is made of non-performance; the other party has accepted their joint undertaking, and he cannot elect to separate in his suit those who have not consented to sever in their contract. The case of wrong-doers is wholly dif

1 Farebrother v. Ansley, 1 Camp. 343; Wilson v. Milner, 2 Camp. 452; Pitcher v. Bailey, 8 East, 171; Booth v. Hodgson, 6 T. R. 405; Merryweather v. Nixan, 8 T. R. 186; Vose v. Grant, 15 Mass. 505; Wheeler v. Worcester, 10 Allen, 591; Campbell v. Phelps, 1 Pick. 62; Wilford v. Grant, Kirby, 114; Thweatt v. Jones, 1 Rand. 328; Dupuy v. Johnson, 1 Bibb, 562; Acheson v. Miller, 18 Ohio, 1; Wallace v. Miller, 15 La. Ann. 449; Moore v. Appleton, 26 Ala. 633; Rhea v. White, 3 Head, 121; Murphy v. Wilson, 44 Mo. 313; Silvers v. Nerdlinger, 30 Ind. 53; Bishop v. Ely, 9 Johns. 294; Williams v. Sheldon, 10 Wend. 654; Mayne v. Griswold, 3 Sandf, 463; Blanchard . Burbank, 16 Ill. App.

The plaintiff may even bring different forms of action against the different participants in the wrong; as trespass against one, trover against another, and so on. DuBose v. Marx, 52 Ala. 506. When separate actions are brought for a joint trespass, plaintiff can recover against one or more though others be acquitted and if separate judgments are obtained he make his election to take the larger judgment or pursue the solvent party and when made he is concluded. This is a privilege of which he cannot be deprived. He can have only one satisfaction but the judgment satisfied must be the one he has elected to take. Power. Baker, 27 Fed. Rep. 396.

ferent; the party injured has not assented to their action; he has not agreed what the consequences shall be if one or more shall trespass upon his rights, nor is he morally under obligation to pursue his remedy in any particular form because of that form being most to their convenience. Whatever course is seemingly most for his interest, it is just that he should be at liberty to select.

*Nor, after suit is brought, can there be any apportion- [*135] ment of responsibility, whether the suit be against one

or against all. Each is responsible for the whole, and the degree of his blamableness as between himself and his associates is immaterial. When the contributory action of all accomplishes.