Rose v. Oliver

Spencer, J.

delivered the opinion of the court..

A metió» has been made in arrest of judgment, because it appears, by the declaration, that Russell has been returned not found on the capias, and is complained of, together with the two other defeddants, as having committed the trespass; the plea is put in by the defendants, returned taken, and the verdict finds them guilty of the trespass alleged; but it is contended that the plaintiff cannot have judgment against them, as it appears by his own showing, that Russell, whom he has made a defendant, has not been brought into court, nor answered. I have said that the verdict was only against the two; thcposica has not been produced, but a general verdict for the plaintiff, on the issue joined by the two defendants, would authorize an entry that those two only were guilty,

• The method of declaring in this case was, probably, adopted under the notion that the statute, authorizing proceedings against such joint debtors as were returned taken, extended to this case; an idea certainly very inaccurate; but the effect of this mode of declaring we conceive to be the same as complaining that A- and R,. did a trespass simul cum quodam, C. D. because, in neither case is the person not taken a party to the suit. If, then, the two modes of declaring are substantially alike, Henly v Broad (1 Lev. 41.) is decisive, that after a verdict the defect is cured. In that case Henly brought trespass against Broad, in B. R. and declared that he, simul cum qiiodam, J. S. clausum suum fregit. The defendant pleaded to issue, and it was found for the plaintiff. . It was objected, in arrest of judgment, that the count was not good, because it appeared, from the plaintiff’s own showing, that the action ought' to have been brought against another not made a party-defendant, but judgment was given for the plaintiff, and upon a writ of error to the Exchequer chamber, it was affirmed, on t^ie PrinciP,e ^iat ^ was cure(i a^ter verdict, by the statute of jeofails. The ground of this decision must have been, that a trespass is in its nature the separate act of each individual, and that, therefore, the plaintiff has his election to sue all, or any number of the parties. Sergeant Williams * in his notes, after noticing the case of Henly v. Broad, and several other cases, which recognise the principle, that if the plaintiff show that the tori was.done jointly by the defendant and A. B. the suit shall abate, says, that there is no. good ground for the distinction, and that it is contrary to the cases in 1 Salk. 32. and 6 Term, 766. and that it was always held, that if the declaration only stated that the defendant simul cum, quibusdam ignotis did the wrong, the action shall not abate. There is no reason why, contrary to the established principle, that trespasses are joint or several at the election of the injured party, he should be obliged to make all the trespassers parties, even if he know them. It can produce no injury to the defendant,, because, on the trial, there would be no evidence of the separate and distinct acts of the trespassers. As to the idea that a contribution could be enforced, and that, therefore, all known to the plaintiff should be made parties, it is enough to say, that this is not a case of contribution; and if all the damages were levied on one of the two defendants found guilty, he would be remediless. The defendants must take nothing by their motion.

Rule refused, (a)

* 1 Saund. 291. (d) note.

(a) In (he case of Rogers against Lake, who is impleaded with Lake, argued in this term, on a motion in arrest of judgment, by Crary, for the plaintiff, and Ingalls, for the defendant, (he same question arose,, and the motion, for the same reasons, was refused.