The decision of the judge, at nisi prius, was correct. The jury have found that Powers did not act in aid or assistance, or by commandment of the constable; and he, therefore is not entitled to the benefit of the statute for more easy pleading in certain suits, (1 R. L. 155.) Hunt, the officer, by uniting in the same plea with one who was not within the statute, also lost the protection of it. (2 Caines, 108; 2 Cowen, 426: 1 Jaund. 28, note (2).) In the case of Schermerhorn v. Tripp, (2 Caines, 108,) the plea was the general issue. But it was there distinctly held, that where, in trespass against several, all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone. (And vid. 2 Wils. 385; Str. 993, 1184.) The defense here is in nature of a justification; and admits the original trespass. It is conceded, that if the justification had been jointly pleaded, the privilege of the constable would have been forfeited. The case as presented is substantially the same. The general Issue involves a justification.
Hew trial denied.