Eason v. Westbrook , 1 N.C. 267 ( 1818 )

Ham., J.

delivered the opinion of the Court.

It is said in Fitzherbert's N. B. 116, K. that a writ of conspiracy for indicting for felony doth not lie but against two persons ⅛⅛ the feast, and that both or neither must be found guiltyf but a writ of conspiracy for indicting one of trespass or other falsity lieth against one person only.

And it appears from many adjudged cases that an action on the case in the nature of a conspiracy will lie against one, or if brought against many all may be acquitted but one,^* so that it is no good objection to this action that one has been acquitted and the. other found guilty

^ *s sa’^ ‘n Chitty’s Pleadings,^† if several persons be. made Defendants, jointly, where the" tort in point of law could not be joint, they may demur, and if a verdict bo taken against all, the judgment may be arrested, or reversed On writ of error.—In this case, the declaration charges both Defendants with that of which one only can. be guilty, viz. that the land was not advertised in the most public place in the county for forty days. This is a charge that can only be made against the sheriff, whose official duty it was so to advertise it, and in case a ver-, diet had been taken against both, advantage might be taken of it in either of the ways pointed out: but a verdict has been taken against the sheriff only and the other acquitted, which does away the objection. Ibid, -as in an action against husband and wife for that they Spoke of the Plaintiff certain scandalous words, the Jury found the husband guilty, and the wife not guilty, the Plaintiff shall have judgment; for tho’ the action ought not to be against both, and therefore if the Defendant had demurred to the declaration, it would have been bad, yet the verdict hath cured this error.^‡ Indeed if the Tury, in , •. T j j ■> the preseht case, had found both Defendants guilty, the Plaintiff might have entered a nolle prosequi 'against Garland and taken judgment against the qther.^§ whether ... pi ' i ' " ‘tr the charge of the court was right or not» Westbrook has no right to complain—if wrong, it was only so as to Garland, who has now no r„eáson to complain, as the Jury have acquitted him. I think a new trial ought riot to be granted.-

* 1 Saun. 230 note 4.

† Vol 1st. p 74.

‡ 1 Roll. abr. 781. Str. 349. 2 Saun. 117, note 2.

§ 1 Wils 306, 1 Saun 207, n 2.