delivered the opinion of the Court:
The plaintiffs in error allege that there is error in the judgment, sustaining the plaintiff’s • motion to disregard their pleas and treat them as a nullity, and also in giving judgment for the plaintiff by default after their plea of not guilty had been filed, and they had severally interposed ;a special plea in justification, as well as -in swearing ' the jury to inquire of damages, when they should have been sworn to try the issue. These questions will be considered and disposed of in the order in which they are .above stated. The motion to disregard the plea may have been and probably was based upon the 49th section of the Statute, passed 3d July, 1807, as contained in the Digest of Laws of Arkansas, by Steele and McCampbell, page 331, but if it was, the record fails to show any requisition upon the defendants to produce them, and the court erred in sustaining the motion of the plaintiff to disregard the pleas and give judgment as by default against the defendants; and we are not aware of the existence of any other law justifying such judgment for the non-production ,of books or writings, in the possession .of the defendants, under any circumstances; but inasmuch as these special pleas do not appear in the record before us, we cannot, according to the principle stated in the case of Davis bs. Gibson, decided at the present term, regard them as interposing any defence to the action, because it is impossible for us to know, what the facts so pleaded were, or whether they were so pleaded as to constitute a legal bar to the action; besides the judgment of the Circuit Court is against the parties pleading, and there is nothing in the record which proves that judgment wrong. The special pleas, for aught that appears, may have been inapplicable to the case, or legally insufficient to bar the action, in which event, the judgment should not be set aside for the defendants below, because the record does not'show that their rights have been prejudiced by it, notwithstanding the illegality or insufficiency of the reason assigned by the court for disregarding them.
Such, however, is not the case in regard to the general issue, which, as the record states, was pleaded jointly by the defendants previous to the giving judgment against them, as by default; and although the plea, as it appears on the record before us, purports on its face to be the plea of the defendant Cole only, this can make no difference as to the question now under consideration, for it must be admitted, that the. failure of Severs to plead could not in any manner prejudice the defence made by his co-defendant; and, therefore, if the judgment, as given, is not warranted by the circumstances of the ease, as to both, it cannot, upon legal principles, be supported as to either; and as we have already decided that the defendants do not appear by the record, to have been required in the manner prescribed by the provisions of the statute above cited, to produce the papers mentioned in the special pleas, and that the court was not therefore warranted in giving judgment that the special pleas should be disregarded, upon the ground of the papers therein mentioned not being •produced; it follows of course, if that decision be correct, that the court erred in disregarding the plea of not guilty, and treating it as a nullity, and proceeding to pronounce judgment against both defendants, as by default, which could not have been legally done, even if the defendants had been regularly and legally required to produce the papers or writings mentioned in their special pleas, in the manner prescribed by the statute; because, according to the very language of the statute, judgment by default could only be given as to that part of the defence, “ to which the books or papers of the party are alleged to apply,” and in the present case there is no allegation that the papers or writings in question apply to the defence, upon the general issue, nor is there any pretence, or reason to believe, that they could have been used as testimony for either party. On the trial of this issue, therefore, the court erred in giving judgment for the plaintiff as by default, and treating the pleas of not guilty interposed by the defendant Cole, as a nullity, and for this error, the final judgment of the Circuit Court, as well as the judgment by default, given in this case, are hereby reversed, annulled, and set aside, with costs, and this cause remanded to said Circuit Court for further proceedings therein to be there had, according to law, and not inconsistent with this opinion.