Higby v. Williams

There can be no doubt that the Court erred in admitting evidence of the unconnected and distinct acts of some of the defendants, after a joint trespass was proved, for the purpose of enhancing the damages. The principle has been established, that if two or more defendants join in a justification of a trespass, by a special plea, and which would have been a justification to some of them, had they pleaded it separately, but which would not justify others of them, the plea is bad as to all. The reason is, that the court Cannot sever the justification, and say that one is guilty, and the other is not, when they all put themselves on the same terms.

This rule is a very artificial one, and ought never to be extended beyond the very cases to which it has been applied ; and it may safely be asserted, that it never has been extended to the general issue of not guilty, pleaded jointly. In the case of assumpsit, if the defendants plead the general issue jointly, the plaintiff is bound to prove a joint assumption, and if he fails in doing this, he cannot succeed. Infancy, or a discharge under the insolvent law, of one of the defendants, will not defeat the action; but in those cases the joint promise must be proved. There is no reason to be given, requiring the defendants to sever in the plea of the general issue, and there is no case that inculcates the doctrine. Trespasses commited jointly may be treated by the injured party as joint or several; though he can have but one satisfaction. If he joins the several trespassers, to obtain a verdict against all of them, he must prove a joint trespass. *218If he fails to give proof implicating them all, but which proves some of them guilty, be will be entitled to a verdict and judgment against them, and those not proved to be guilty will be entitled to an acquittal, and judgment for their costs. These are principles daily recognized. In Sedley v. Sutherland and others, (3 Esp. Rep. 203.) Lord Kenyon said, that where an action is brought for a joint trespass, and the plaintiff elects to go for a trespass at any particular time, he must confine himself to that period; and if all the defendants were not concerned in the trespass committed at that time, the plaintiff cannot have recourse to a trespass committed at a future time, when some of the defendants were concerned who were not implicated in the first transaction; and he says, the reason is this, that some of the defendants might be thereby subjected to damages for a trespass in which they had no part or concern. The reason is too obvious and just, to require any arguments to support it.

Judgment reversed.