Middlebrooks and family sued Greaves and others in trover for certain quantities of corn and fodder, to which they claimed title as raised on their homestead, regularly set apart. The defendants pleaded that they purchased the corn and fodder at a constable’s sale, sold as the property of Ben Harris and another. The jury found seventy-five dollars for the plaintiff; defendants made a motion for a new trial, it was overruled, and defendants excepted.
The grounds insisted1 on here for a new trial are these: First, that the homestead papers, particularly the plat, was improperly admitted in evidence; secondly, that the trespass suit against the constable and sureties on bond, with verdict and judgment for sureties, after death of constable pendente lite, was rejected as evidence; and, thirdly, because the verdict was against the law and the testimony.
1. "We think that the homestead papers were properly introduced in evidence. The only objection was, that the survey was not laid down by a scale of ten chains to the inch, under the 56th rule of court. "We regard the rule as directory only, and if not complied with, we would hot hold it such a defect as to vitiate the entire proceedings. Besides, that rule is applicable to surveys under orders, or rules of survey, in the superior court, and need not be followed by the ordinary in setting apart a homestead.
2. The judgment in the trespass case was properly rejected. No plea of res adjudieata was filed, which is necessary under our Code, section 3458. This plea is matter of avoidance, and must be specially pleaded under that section. If rightfully pleaded, it would hardly have availed. The judgment was for a trespass by the constable, and the verdict *242and judgment were for the sureties only. Besides, the question1 here is title to corn and fodder; there, it was a wrongful levy. The levy might have been rightful, though there wTas no title in the defendant in fi. fa., and the officer and sureties protected by the necessary affidavit. A plea of former recovery must be good on both sides — mutual—otherwise it is bad.
3. The verdict is supported by the evidence. Middle-brooks swore that the corn was, raised on his homestead, and taken from his crib by these parties. Nor was it against law. The Code, section 3075, allows the recovery for the highest amount against all trespassers, who acted jointly, and these seem to have done so, from the testimony. Therefore, we affirm the judgment on all the points made.
Judgment affirmed.