By the Court,
Savage, Ch. J.The first question in this cases arises upon the record. The jury have found but one issue for the plaintiff, and that upon the pleas of non cepit. 1 cannot distinguish this case from Bemus v. Beekman, 3 Wendell, 667. It was there determined that in replevin, where a plea of property is interposed as well as a plea of non cepit, a verdict for the plaintiff upon non cepit determines nothing except the taking, and does not entitle the plaintiff to damages, unless the other issues are found for him. In that case the jury did not find damages, and this court amended the verdict by adding nominal damages; but the court for the correction of errors held that that did not cure the irregularity. This verdict stands precisely as that did after it was amended; that is, damages and costs are awarded upon a verdict on the plea of a on cepit, leaving the issues upon the justifications undecided.
*164Had the'verdict been for the plaintiff generally on all the issues, then the attorney would have had the right to put it in form, but the jury must in such case find all the issues in favor of the plaintiff, or enough of them to authorize damages in his favor. Senator Benton remarks, that upon such a finding, neither party is entitled to judgment. If the pleas in bar be true, the present finding is not inconsistent with them, and the defendants may be entitled to judgment. The issues upon those pleas cannot be considered immaterial. The case already referred to decides that this is an irregularity which is not amendable, and of course, for this cause, the judgment below must be reversed and a venire de novo awarded.
As to the points actually decided by the court, I am inclined to think they were right. It is undoubtedly true, that if a plaintiff joins several defendants in trespass, he must prove a joint trespass. If the plaintiff in this case did not prove a joint trespass, he must fail. But, on the supposition that there was no justification, he did prove a joint trespass. In the first place, Sprague took the horse, and he remained in his possession until he passed, by Sprague’s consent, into the possession of Cary. It makes no difference that they were not both together at the instant of mutual possession, or what is equivalent ; Sprague was a trespasser when he took the horse, and continued to be a trespasser until Cary became a trespasser? If not after. It will not do for these defendants to excuse themselves, as to the possession of the horse, by one saying, “ I have not got him,” and the other, “ I did not take him.”' They both had him, one by delivery from the other; their possession was therefore sufficiently simultaneous to constitute them joint trespassers.
That the declarations of a former owner of personal property cannot be given in evidence to affect the title of the succeeding owner, where such declarations were made after he had parted with his interest in the chattel has been decided in several cases. Hurd v. West, 7 Cowen, 752. 8 Wendell, 490.
Judgment reversed, with costs ; venire de novo tobe awarded by Broome common pleas.