Majority
p. 432Farrington and Smith against J. Payne.
Headnote
Where there pass^orconver" gie" indivisible act, m relation tels, the plaintiff cannot split his claim for bSngmg’sepatrespass‘or tro-" particular6 aí tide seized or converted ;’and oneec°pari parcel, ¡Sambar for another orWhere the once adjourntice’s'courtf by the^efenctent forna second adjournment, on account of the want of a material witness; but does due ^diligence had been used to obtain the refuTef’to d£ where thewPt“vq3 ei-V for * the justice to refuse the adjournment
IN ERROR, on certiorari to a justice’s court,
This was an action of trover between the same parties as *n T>e preceding case, to which the same justification was pleaded. The cause was adjourned, by consent, and at the adjourned day, the defendants below asked for a second ad- . J journment, and offered to give security, and to swear that they could not safely proceed to trial for want of a material witness; -but they refused to name the witness, or to say where he resided." The justice denied a further adjournmpnf
The defendants then pleaded, that since issue had been jeined in this cause, judgment had been rendered against them in another action, for the same act and subject matter , . „ . . complained oi in the present suit. 1 he judgment referred to by the plea, was that in the preceding case between the same parties. O n the trial, the same evidence was produce^ the .plaintiff below, as in the last case, with this addi^on’ when the defendants below took the three bed» quilts there mentioned, they also took the bed. The pro- . . J r ceedings and judgment in the former suit were admitted. . j■ , . . . . „ , , „ , A verdict and judgment were given for the defendant in error, for the value of the bed, with costs.
The justice decided correctly in refusing second adjournment, as there was no proof of due dili§ence> an¿ as the party refused to explain who, or where, the'witness was.
Upon the main question of this cause, we are clearly of opinion, that the judgment in the first suit was a bar to the plaintiff’s claim in this action. The only evidence of a conversion was the tortious taking under the attachment. The seizure of the bed, and the bed-quilts which then lay on the bed, was one single indivisible act, and the plaintiff ought not to he permitted to vex the defendants, by splitting up his claim for damages into separate suits for each article so
p. 433
seized. There is no difference in this respect between the actions of trover and trespass. In Smith v. Jones,* the court decided, that where goods were sold, at one time, on an entire contract, the vendor could not maintain separate suits for separate parcels of the goods, so sold and delivered. There is no reason for a difference in the rule between torts and contracts. Suppose a trespass or a conversion of a thousand barrels of flour, would it not be outrageous to allow a separate action for each barrel ? The judgment must be reversed.
Judgment reversed.