Drake v. Barrymore — 14 Johns. 166

Majority

p. 166

Drake and others against Barrymore.

NEW-YORK,

May, 1817.

Headnote

In tresspass jointly plead not them! against 330 evidence, diet atakenVer|ainat the othtresspassCtiona-f teésStorhcfficers ac!aírtíatiretito ttoyTrenot°en’ v'wenjeof ajmthe general is stie"

IN ERROR, on. certiorari to a justice’s court. Barrymore brought in an action of trespass, * before the justice, against Drake, Corwin, and Curry, for taking and carrying away the plaintiff’s hog. The defendants in the court below pleaded not § < y* At the trial, the plefttiff proved that Drake, one of the defendants, came to his house alone, and carried away the P^a‘ntlff’s hog, without showing any privity or command of the °^er *wo defendants. Corwin and Curry, the other defendants thereupon insisted, that they ought to be acquitted; but the justice decided, that as they had pleaded jointly with Drake, they were to be considered as all guilty of the trespass proved SgBinSt him*

The defendants then offered to prove, that Corwin and Curry were trustees of a school district, and had regularly issued a warrant to Drake, as collector of that district, and that he took the hog by virtue of that warrant. This evidence was objected to, and overruled by the justice, on the ground that it was inadmissible under the general issue. 'A judgment was given for the plaintiff, against all the defendants, for the value of the hog, with costs. The return further stated, that “ the plaintiff then released and discharged the said Co Twin and Curry, of and from the recovery so had against them.’’

The justice erred in deciding, that upon a joint plea of not guilty, two of the defendants could not be acquitted, though there was no evidence against them. (1 Chitty, Pl. 75. 3 East Rep. 62. Cowp. 610.) There is a distinction in this respect,' between a joint plea of the general issue, and a joint plea-of justification. In the latter case, if the plea is not supported as to all, neither of the defendants can be protected under it. (Schemerhron and others v. Trip, 2 Caines Rep. 108 . 1 Saund. 28. n. (2.)

As to the second point, the justice decided correctly, that the justification, under the collector’s warrant, could not be admitted under a plea of not guilty. It is not a case within the statute, allowing to certain public officers that privilege; and the act relative to common schools, which creates these officers, is'

p. 167

silent in this respect. The judgment must therefore be reversed on the first ground. - - -

In returning that the plaintiff had released two of the defend~ ants from the judgment, the justice went beyond his office. The plaintiffs in error have no opportunity of controverting that fact, or questioning its legal effect. We cannot therefore, take notice of it on this record.

Judgment reversed.