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O'Shea a. Kirker.

son the plaintiff is not permitted to contradict the allegations contained in it.

In the case referred to, it is evident that the decision was made in reference to an answer verified in the usual manner. But here we have an affidavit made by the attorney, that the matters stated in the answer are within his personal knowledge, and are true. This is not only a verification of the answer as required by the Code, but it is also an affidavit containing a positive averment of the truth of all the facts contained in the answer, as fully as if made in a separate affidavit. In such a case I think this is to be regarded as an affidavit made by the attorney, as much as if he had repeated in a separate paper the matter set up in the answer. The motion is therefore made upon affidavit with the answer, and brings the case within the provisions of section 226 of the Code, which allows the plaintiff to oppose the motion by affidavits in addition to that on which the injunction was granted.

The plaintiff may, therefore, oppose this motion on affidavits; and for that purpose the same may be re-heard on notice of two days, to be given by either party.

O'SHEA a. KIRKER.

New York Superior Court; General Term, January, 1859. JOINT LIABILITY.-JUDGMENT.-REFERENCE.-APPEAL.

When several persons are united as defendants in an an action for a wrong, and it is alleged and proved that all jointly did the wrong complained of, the damages cannot be severed, so as to be apportioned according to their respective degrees of guilt; but the plaintiff is entitled to a judgment against all, for the amount of damage which he proves he has sustained.

Where the jury, the court, or the referee sever the damages, the plaintiff may enter judgment against all the defendants for the largest amount found against any of them, and the entry of a remittitur as to the other amounts is a matter of form. The entry of the one judgment for the larger amount is in itself an election to remit the others; and the judgment should not be reversed because there is no formal remittitur.

O'Shea a, Kirker.

Where, on appeal from a judgment entered on the report of a referee, no attempt is made by either party to question the accuracy of the referee's conclusions of fact, the court, no matter which party may have taken the appeal, should direct such a judgment as the law pronounces upon the facts thus found. Two defendants were sued together as having jointly committed a tort, and on the trial it was proved, by competent and sufficient evidence, that they jointly did the wrong, and that the plaintiff had been damaged to the amount of $600. The referee before whom the cause was tried, severed the damages, assessing them at $150 against one defendant, and $600 against the other. On his report, the plaintiff entered judgment against both for $600, without any formal remittitur as to the lesser amount.

Held, on appeal from the judgment, that the severing of the damages was rightly disregarded in entering the judgment, and that the judgment so entered was correct, and should be affirmed, with leave to the plaintiff to modify its form (if so advised), so as to state that he elected to remit the lesser sum, and take judgment against both for the larger sum.

Appeal from a judgment entered on the report of a referee.

The action was brought by P. O'Shea against two defendants, J. B. Kirker and J. G. Shea, for libel. The cause was referred, and the referee found, as matters of fact on the issues tried before him

That the defendant John G. Shea wrote and caused to be published the alleged libellous matter set forth in the complaint; that the said John G. Shea was, at the time of the publication mentioned, in the employment of the defendant Kirker, who was then carrying on business in the city of New York, as a bookseller, under the name of Edward Dunigan & Brother; that the said Kirker saw the circular to which said libellous matter was attached after it was printed, and to which circular the name of "Edward Dunigan & Brother" was affixed, and knew of its being issued and circulated, and the same was issued and circulated from the business establishment of said Kirker. He also found, "as matter of law, that the defendant Kirker did publish the alleged libellous matter."

After further stating the facts found on the question of justification, he found that the libel was wantonly and unjustifiably made and published by the defendants, and concluded his report as follows:

"As a conclusion of law, on the facts of the case, the referee finds that the plaintiff is entitled to recover damages against the defendants, for an unjustified libel.

O'Shea a. Kirker.

"The referee severs the damages, as the defendant Kirker appears to have taken little part in the libel, and is chiefly censurable for allowing the charges against the plaintiff to go forth attached to a circular, under the name of his firm, while the defendant John G. Shea, wrote and personally caused to be circulated, the alleged libellous matter.

"The referee finds that the plaintiff has sustained damages from the defendant Kirker, to the amount of one hundred and fifty dollars, and damages from the defendant John G. Shea, to the amount of six hundred dollars.

"The referee, therefore, decides and reports that the plaintiff, Patrick O'Shea, do recover judgment against the defendant James B. Kirker, for one hundred and fifty dollars, and that he do recover judgment against the defendant John G. Shea, for six hundred dollars."

Upon this report the plaintiff entered judgment against both defendants for $600.

The defendants now appealed.

James T. Brady, for the appellants.

Wm. Fullerton, for the respondent.

BY THE COURT.*-BOSWORTH, Ch. J.-The learned referee before whom this action was tried, and by whom it was decided, found as a fact, "that the alleged libellous matter was wantonly and unjustifiably made and published by the defendants," and held, " as a conclusion of law on the facts of the case," that the plaintiff is entitled to recover damages against the defendants for an unjustifiable libel.

He further states in his report, that he severs "the damages, as the defendant Kirker appears to have taken little part in the libel, and is chiefly censurable for allowing the charge against the plaintiff to go forth attached to a circular under the name of his firm, while the defendant John G. Shea wrote and personally caused to be circulated this libellous matter."

He further found, that Kirker damaged the plaintiff to the amount of $150, and Shea to the amount of $600, and decided

* Present, BosWORTH, Ch. J., HOFFMAN and MONCRIEF, JJ.

O'Shea a. Kirker.

that the plaintiff should have judgment against the former for $150, and against the latter for $600.

If the two, jointly, did the wrong, and if the amount of resulting damage is correctly found, then that wrong damaged the plaintiff to the amount, at least, of $600.

Each defendant, in judgment of law, is liable for the whole of such damage, and one is as absolutely liable to the plaintiff for the whole damage as the other. (Bohun a. Taylor, 6 Cow., 313; Knickerbacker a. Colver, 8 Cow., 111.)

When several persons are united as defendants, in an action of tort, alleged to be their joint tort, and it is established that all jointly did the wrong complained of, the damages cannot be severed. The plaintiff in such a case is entitled to a judgment against all jointly, for the whole amount of damages which it is proved that such wrong caused him.

When a jury or referee, on such a state of facts, attempts to sever the damages, and finds that one sum should be paid by one defendant, and a different sum by another, they constitute themselves into a quasi Court of Chancery, with no rules to guide them in apportioning damages, except such as seem to them "equitable" in the particular case, and override the stern rule of the common law, that each defendant is liable for the whole damage. And they seem to forget for the moment that a plaintiff can have but one satisfaction, and that settling with one of such wrong-doers, or collecting from one of them the amount assessed against him separately, discharges all.

I think it just to say they seem to forget this rule, because in such cases it is fair to presume they intend that each defendant shall pay the damages assessed against him. In the case before us, it is quite evident the referee intended, so far as his action might affect that question, that the plaintiff should recover $750, viz., $150 of Kirker, and $600 of John G. Shea.

On the facts found by the referee, the plaintiff was entitled to a judgment against both defendants for $600, unless the referee's erroneous severance of the damages, and the provisions of the Code as to the form and nature of a judgment to be entered on the report of a referee to whom the whole issue has been referred, have deprived him of that right.

If the cause had been tried by a jury, and they had found the facts which the referee has found, and had then severed the

O'Shea a. Kirker.

damages, assessing them as the referee has done, the plaintiff could take judgment against both defendants for $600.

At all events, we should hardly be justified in holding to the contrary, against the decision of Halsey et al. a. Woodruff (9 Pick. R., 555), and the terms of decided approbation in which that decision is spoken of in Beal a. Finch (1 Kern. R., 135, 136; Ib., 141, 142).

See also Dean a. Thornton and Dutton (3 Kern. R., 266); Bloodyett a. Morris (14 N. Y. R., 482); Bulkley a. Smith et al., (1 Duer's R., 643).

In Hill et al. a. Goodchild (5 Bur. R., 2790), (in an action against two for an assault and battery), "Lord Mansfield observed that the present question is, whether, upon a charge of a joint trespass, the jury can assess damages according to dif ferent degrees of guilt, though the real justice is, that the damages should be respectively assessed in proportion to the real injury done by each defendant." On delivering, subsequently, the opinion of the court, he said: "And the present case is, that the count is of a joint trespass, and the jury have found the defendants guilty of a joint trespass, and yet have severed the damages. We are of opinion that in such case the damages cannot be severed. The consequence is, that the judg ment must be reversed." If that decision declares the law correctly, a judgment entered upon the report of a referee, against each defendant for the amount assessed against him, would be erroneous, and for that cause alone would be reversed.

In Mitchell a. Milbank et al. (6 Term. R., 199), Lord Kenyon, Ch. J., declared, "that to enter several judgments against the defendants (who were found guilty of a joint trespass), on separate and several assessments of damages against them, would be erroneous."

We have not been referred to any adjudication by which a contrary rule has been applied. In some cases, when the jury have severed the damages, the plaintiff has entered a nolle prosequi against all the defendants but one, and taken a judg ment against that one only, and that was held to be regular, and to have cured the verdict; as in Rodney a. Strode (Cart. R., 19); Holley a. Mix and Clute (3 Wend., 350); and see 1 Sandf., 207, note 2.

The decision in Halsey et al. a. Woodruff (9 Pick., 555),

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