*391 B\j the Court,
Savage, Ch. J.The plaintiffs in error seek to reverse the judgment of the court of common pleas on several grounds. They allege no property was shewn in the plaintiff below; that there was no delivery by Randall to him. It is a sufficient answer to this point, that no such objection was raised in the court below, where, if raised, it might possibly have been obviated by testimony. But I apprehend the evidence was sufficient; there was all the delivery necessary in the case of cumbersome articles; there was an agreement to sell; when the logs should be sawed, the stuff was to be paid for by the foot; after they were sawed, the boards were put up for the plaintiff and he was informed of it.
It was objected on the trial, that a demand and refusal should have been proved. Demand is not necessary, except when the defendant is in possession lawfully. In this case the possession was tortious. If the property was the plaintiff’s, the sheriff had no right to levy on it, and a sale by him without authority conferred no right on the purchaser. All who inter-meddled with the property were tort feasors. There was an actual conversion. No demand was necessary.
It is insisted that Windsor should have been sworn as a witness, he having been acquitted on the trial before the justice. This involves an inquiry into the effects of the appeal. By the revised statutes, 2 R. S. 262, § 214, the issue joined before the justice, and no other, shall be tried in the common pleas, upon the same pleadings put in before the justice. The issues before the justice were, first, the general issue; and second, a justification; and as appears by the return, between the plaintiff and all the four defendants. The appeal gives to the parties the benefit of a new trial; a new trial must be had between all the parties, unless the defendants have separated in such manner as to entitle them to a separate trial; and a separate trial has been actually had. A question somewhat analogous arose in The People v. Onondaga Com. Pleas, 7 Cowen, 492, 3. Three defendants were sued before a justice in trespass; two of them severally pleaded to issue, the other did not plead at all; judgment was rendered against them jointly; they appealed, and on motion to quash the appeal because issue was not joined by all the defendants, the mo*392tion was denied by the common pleas because there was an issue as to two, and that drew after it the whole cause as to all the defendants; in which decision this court concurred. So here, I apprehend, the appeal brings up the whole matter for review; there was but one cause before the justice, and there could be but one record, had a record been applicable. If I am correct in this, then Windsor was a party to the record, and could not be a witness.
It is said the court erred in refusing to have Windsor acquitted, as there was no evidence against him. It is in general true, in actions of tort, that when the plaintiff has closed his case, if no evidence has been produced against any particular defendant, he may be discharged by a verdict in his favor, and then he may be a witness for his co-defendants. Phil. Ev. 61. 14 Johns. R. 122. 15 id. 223. 16 id. 217. It was said, however, by Ch. J. Gibbs, 1 Holt, 275, that this is not a matter of right which a party can claim, but that it is discretionary with the judge. This court thought otherwise in Van Dozen v. Van Slyck, 15 Johns. R. 223, and they reversed the judgment below, for an error on that point. In that case, the court below had refused to have one defendant acquitted, against whom there was no evidence, because both defendants had joined in one plea, which was the general issue ; and this court say that although they join in the plea of not guilty, one may be found guilty and the other not, although an opinion to the contrary had been expressed in Schermerhorn v. Tripp, 2 Caines, 108. If, however, several defendants join in a justification of a trespass, the court cannot sever the justification and say that one is guilty and the other not, when they all put themselves on the same terms. Higby v. Williams, 16 Johns. R. 217. The rule, Ch. J. Spencer says, is very artificial and ought not to be extended to the general issue pleaded jointly. There were two reasons, therefore, why the court below should not direct a verdict in favor of Windsor: one, that he had jointly with the other defendants pleaded a justification; the other, that there was not only some, but strong evidence against him. In Brown v. Howard, 14 Johns. R. 122, Ch. J. Thompson says, the want of evidence against a party to entitle him to be a witness should *393be so glaring and obvious, as to afford strong grounds of belief that he was arbitrarily made a defendant to prevent his testi~ mony. In this case, Windsor made a levy upon the property in dispute, which was claiming dominion over it-exercising a control-affirming a right to dispose of it. Ihave endeavored to shew in Wheeler v. McFarland, decided this term, ante, 318, that the levy is sufficient to constitute the officer a trespasser.
The court below correctly refused evidence to contradict the justice’s return. If it did not state the facts correctly, an amended return should have been called for; but it ought not to be contradicted on the trial.
Whether the sale from Randall to the plaintiff was fraudulent, or whether Randall was effectually impeached, were questions for the jury, and with which we have no concern on a bill of exceptions.
Judgment affirmed, with single costs.