People ex rel. Cross v. Judges of the Court of Common Pleas

Headnote

Though there be an issue ana trial before a oniypartofthe deuhdantS' a ¡s by appeal

the 0. tii'ouid acoPntf nue the cause, magesSagainst not8 pkad he fore the justice, though the defendants who pleaded to issue he acquitted in the 0. P. for want of evidence.

If, after trial begun, the court quash the appeal for this cause, it is a mis-trial, which they should set aside, and then proceed to a trial de novo.

The return to the alternative mandamus, showed that 7 Cross sued Brown, Shaw and Kellogg, in trespass de boms aspwtatis, before a justice of the peace of the county of 0nondaSa- defendants were personally served with processs. Brown and Shaw severally pleaded to *issue; and judgment being against all three jointly, they appealed to the 0. P., who denied a motion to quash the aPPea-> made on the ground that though issue was not joined, and there was no trial as to one, yet there being igsue as to two, that drew after it the whole cause as to all defendants; and there could be but a single remedy. In that view, the 0. P. were sustained by this court on a

motion for a mandamus. Then the cause was brought to trial in the 0. P. when there was no proof except against Kellogg. • The 0. P. directed the jury to acquit the other two; and then quashed the appeal in tota, on the ground that after the acquittal, there was no issue to try; and was therefore a want of jurisdiction. They also granted a rule for double costs to the appellants; Brown, being a constable, and having acted as such in the alleged trespass. Afterwards, this rule for double costs was vacated, pursuant to an alternative mandamus from this court. The same mandamus directed the 0. P. to proceed in the cause, without saying how. The cause was again noticed for trial; but the C. P. declined proceeding to trial or assessment of damages against Kellogg, on a writ of inquiry; deeming the latter inapplicable to a case of appeal.

A motion was now made for a mandamus, commanding the judges below to tryj or for such other rule as this court should deem proper.