Majority
p. 381Lansing, who is impleaded with Goeway, against Montgomery.
Headnote
Jn an action pf trespass bro’t against two defendants, they severed in their pleas ; one pleaded a for-picr suit for the same pause, and a judgment in 'his favour, to which the Ínurref tmd judgment was |efendant!hat The other pleaded the general issue, and also that the first defendant had been sued for the samo cause, and judgment ¿riven against the plaintiff, on which a verdict was given for the plaintiff against the se-pond defendant. It was held, that where two are sued for a lort, they may plead separately or jointly, and that the jury may find one guilty, and the other not. And that the judgment ou the demurrer against the plaintiff was no estoppel to the proceedings and judgment apinst the other defendant. •' 4 ^ON the return to the certiorari in this cause, the following facts appeared. The defendant in error brought an action of trespass in the court below, against Lansing and Goeway. Both defendants appeared, and the plaintiff below declared against' them, that Goeway being a constable, Lansing, as landlord, gave him a warrant to distrain on the plaintiff for rent, and that by virtue of the wanant> &oaway took and carried away the property of the plaintiff, to the amount of twenty-five dollars, when, 111 fllct’ no rent was clue- The defendants' severed in their pleas, Goevjay pleaded, that the plaintiff had he- ‘
p. 382
fore sued him for the same trespass, and that he then - 111,- o r- r 1,-1 pJeaded his power, &c., from Licensing, as landlord, to distrain, and that the jury found a verdict, in his favour. m,- i i ...-i;,, , , io this pica the plaintiff below demurred, and judgment was given for the defendant, Goeway. Lansing, the other defendant, pleaded, 1. Not guilty. 2. The former judgment in favour of Goeway, and averred, that this action was for the same trespass. The plaintiff below replied, that there was no such judgment, and an issue be^ ing taken on that fact, a verdict was found for the plaintiff, and the damages assessed to fifteen dollars.
Foot, for the plaintiff" in error, contended,
that as the plaintiff below demurred to the plea of Goeway, he admitted the facts stated in the plea, of a former suit, and a judgment for the defendant, and that he could not, afterwards, proceed to have the same facts tried by a jury; that judgment having been given for Goeway, on the demurrer, the plaintiff was estopped from proceeding against Lansing for the same causo of action. (2 Mod. 5. Cro. 'Car. 35.)
Ross, contra.
The plaintiff below mistook his action in the first suit against Goeway. An action will, not lie against a ministerial officer who distrains under a landlord’s warrant.[1] If the first action was misconceived, i , , the plaintiff might bring a new action against the defendants.[2] Where one of two defendants in trespass iusti- ,, , , . , , „ , ,[3] lies, and is acquitted, and the other defendant pleads not guilty, and a verdict is found against him, the verdict will be supported.}- As Lansing consented to go to trial, after the judgment on the demurrer, he cannot now avail himself of that judgment. Besides, he was a stranger to the record, and a different trespasser.
The judgment in favour of Goeway was 110 bar to the suit against Lansing, for torts are joint and several, and the defendants pleaded separately. Where two are sued for a tort, the jury may find one defendant
p. 383
guilty, and the other not guilty.[1] The demurrer to the plea of Goeioay did not estop the plaintiff from replying to the plea of Lansing, and going to trial on that issue; for Lansing was not a party to the demurrer, and one who is not bound by, cannot take advantage of, an estop-pe].[2] Nor were the iurv who tried the issue between the plaintiff and Lansing bound by the supposed estoppel, for it was not contained in the pleadings before them. An estoppel cannot be taken by inference, but must be relied on in pleading.[3] In the present case the parties did not rely on the estoppel, but joined issue on the fact of a former recovery. The judgment below must be affirmed.
Judgment affirmed.
|| || Ante, p. 365.
** * Co Lit. 227. a.
‡‡ ‡‡ Co. Lit. 227. a. 352. b.