Farrington v. Payne

15 Johns. 432

Opinion

Per Curiam.

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 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.