On the trial of this cause, in the court below, it was conceded, upon the facts disclosed in the evidence, that no recovery could be had upon the first count: and that the plaintiffs were, only, entitled to recover for a continuance of the obstructions, as set forth in the second count in their declaration.
It is now insisted, that as the plaintiffs have, in this count, charged the defendants with continuing these obstructions, on their own land; and as it was proved, on the trial, that during such continuance, Clark Nott, one of the defendants, had no interest in the land, and no agency in continuing the obstructions ; the jury ought to have been charged, that there was a fatal variance between the allegations and the proof.
Whatever force we might be disposed to allow to this objection, if it had been raised in the court below; yet as it was not raised there, it cannot now be urged ; much less can we suffer it to prevail.
To permit this, would be, to contravene the plainest principles of justice, and, directly, to abrogaté a long established rule of this court.
The defendants joined in the plea of not guilty; and tiieju ry were charged, that if they should find, that the defendants jointly continued the obstructions ; or that they had been con*379tinued, by one only of the defendants; yet as they had pleaded jointly, and not severally, they might find a verdict against both.
, The charge was, manifestly, wrong. The rule is, indeed, well settled, that if two defendants join in a plea, which is sufficient as to one, but not for the other, the plea is bad as to both. And thejreason assigned is, that the court cannot sever it, and say that one is guilty, and the other not, when they both put themselves on the same terms. 1 Chitt. Plead, 545. 1 Saund. 28. n. 2. Duffield v. Scott, & al. 3 Term Rep. 374. 376.
The rule, however, has reference only to pleas of justification, in which the facts charged are necessarily confessed; and was, in the hurry of the trial, mistakenly applied to a case, to which it clearly has no application.
The general issue denies all the facts stated in the declaration. And as torts are, in their nature, several, the plea of not guilty, is also several. The jury ought to have been instructed, that under it, they might find one of the defendants guilty, and the other not guilty. In regard to Sanford, one of the defendants, as it was admitted, that if the obstructions were continued at all, they were continued by him, hé has no ground to complain, either of the charge, or the verdict. There must, however, be a new trial, unless the plaintiffs will consent to enter a nolle as to Nott, the other defendant, and pay him his costs. Should they do this, the cause will not be sent down to another trial; otherwise, the rule must be made, absolute.
The other Judges were of the same opinion.New trial to be granted, nisi.