Palmer v. Crosby
In support of the first point, the plaintiffs in error have cited 1 Str. 473, 2 Str. 1269, 1 Wils. 78. These are all actions founded on contract, and if the present were a case of that kind, the objection would be a sound one, and the authorities in point; there could hav.e been no proceedings in the cause against the defendants summoned, until the sheriff had returned that the others were not inhabitants, of the county; which return is substituted by our statute for the English process of outlawry
The second point relates to the assessment of damages. The charge against the defendants upon which this action is founded, is a joint trespass, assault and battery, and false imprisonment, committed by them jointly on the plaintiff. The defendants severally pleaded not guilty; and the question for us to determine is, Had the jury a right to assess several damages against such ofthe defendants as they found guilty of this joint trespass? We are of opinion that the jury could not thus sever the damages. In actions of this kind, the law contemplates no different degrees of guilt. Some of the defendants may be found guilty, and others not; but a party, if guilty at all, is equally guilty with every other party in such joint offence, and is equally liable to the same damages. The trespass is entire, and the act of one is the act of all. The circumstance of defendants, in such cases, severing in their pleas, can make no difference; because, when the jury find them jointly guilty of the charge in the declaration, the verdict determines their different pleas to be all equally untrue. Had the jury assessed several damages, it is agreed that such irregularity would have been no ground for a motion in arrest of judgment, because the plaintiff might have entered a nolle prosequi as to all the defendants but one, taken judgment against him, and thus cured the defect in the verdict
The judgment is affirmed, with 1 per cent, damages, and costs.
A return of non est inventus, with a suggestion thereof on the record, is now sufficient. Stat. 1823, p. 290. Vide Morris v. Knight, ante, p. 106, note.
If, however, an intermediate number be sued, and they plead to the merits, the objection is waved. Minor et al. v. The M. B. of A. 1 Peters, 46, 73.
In that case the plea was bankruptcy. So, if it be ne unques executor. 1 Will. Saund. 207, n. 2. Where one pleads infancy, which not only goes to his personal discharge, but shows an original defect in the contract, the plain
Or he might have entered a remittitur as to the less damages, and had judgment for the greater against all. Johns v. Dodsworth, Cro. Car. 192. — Sabin v. Long, 1 Wils. 30. — 1 Arch. Pr. 195. — Dougherty v. Dorsey, 4 Bibb, 207, 210.
In these cases, where the defendants sever in pleading, the regular practice is, to defer the trial of the issues until the cause is at issue as to all the parties, or the steps of the law have been taken to bring them into default.— Minor et al. v. The M. B. of A., supra.
Several damages may be assessed, if one be found guilty of a part of the trespass, and the other of another part. Player v. Warn, Cro. Car. 54; or one guilty at one time, and the other at another time; Heydon's case, 11 Co. R. 5; or some guilty of the whole, and the others of only a part. Austen v. Willward, Cro. Eliz. 860. 1 Arch. Pr. 195.