Page:Harvard Law Review Volume 8.djvu/189

NOTES. 173 "You must sing," and seems inclined to put it on the score of difficulty in seeing whether " the artist in good faith and really has given the other party the benefit of the talents for which he was engaged." In addition to this may there not be a feeling against restraint of the personal liberty of the citizen ? Doing personal service because one is ordered to under the pains and penalties which a court of equity can inflict, seems danger- ously like temporary slavery. And might not a court well say, "This is too much to give, whether or no we can do it, even to one who asks for the letter of his bond." Judgment or Satisfaction. — The Massachusetts Court has divided nearly evenly over the question of whether title passes on a judgment in trover or on its satisfaction. The case, Miller v. Hyde, 37 N. E. R, 760, was this : The defendant, a servant of the plaintiffs intestate, sold a horse belonging to him to a third person. The plaintiff recovered a judgment in trover and attached the horse for execution. The defend- ant's vendee reattached the horse and plaintiff could get no satisfaction for her judgn-ent. All this was in Connecticut. Later in Massachusetts the plaintiff replevied the horse from the vendee, and the question was whether she should succeed in that action. The majority, holding that title remained in plaintiff till satisfaction, maintained that the second action would lie ; the minority, that having chosen her remedy, plaintiff had no further action. The case was d jubtless a hard one for the plaintiff, because she had a worthless judgment debtor and was too poor originally to give bond for replevin ; but having chosen between the devil and the deep sea, should she not have abided by her choice? What she had was a right to posses- sion of the horse, which she agreed to extinguish for a right to damages, when she brought her action. It is for the law to say which she shall have. If it is the I'ormer, the plaintiff during^the time between judgment and satisfaction has gained a right, the right to damages, which corre- sponds to nothing she has lost. By hypothesis she has the right of possession still unimpaired, and besides that a right to damages quite independent and unconditional upon her right of possession, because it cannot be said that the right to damages is not complete as soon as judg- ment is passed. Doubtless judgment would not be passed if the wrong had already been remedied, but after judgment the right to damages is not dependent upon satisfaction beyond itself. Now of course it is possible for the law to confer such a right, but it is no less than a gift, and even though it do not subject a defendant to two actions, if it has any meaning at all, gives the plaintiff two, for a right without an action is an absurdity. As Mr. Justice Holmes remarks, the replevin of the horse does not satisfy the judgment, and it is still outstanding. " Hard cases must not make bad law." Though the law could not do justice in this case without this decision, it will not do justice in others with it. Suppose after a judgment in trover the defendant sells the article to another, and the plaintiff being dissatisfied with his chances on the judgment replevies from the vendee. Is it better to have two men vexed once with a suit, than one twice? The latter is customarily not tolerated, why should the former be? Two remedies for one wrong are not usually allowed by the law ; trover and replevin are now in Massachusetts excep- tions for no reason which should not deny the whole rule.