
    Arrowsmith v. Mayor & Al.
    In an action on a contract and on a tort\ against several defendants, they will be allowed to sever in their defence; even co-trespassers may plead and be tiled separately; a fortiori when one defendant is sued on a contract and the other on a tort.
    
    Appeal from the parish court for the parish and city of New Orleans.
    The plaintiff alleges that in March, 1835, he contracted with the corporation of New Orleans to build a railroad from St. Olaude-street to the Bayou St. John, with branches, from which he was to derive extensive privileges, immunities and advantages. That he entered into extensive engagements to commence the construction of said road, and made every necessary arrangement on his part, in compliance with an ordinance passed on the subject; that by the arrangements made and capital invested, he could and would have finished said road before the middle of July, 1835, had he not been retarded by the neglect and refusal of J. Pifié, Esq., city surveyor, to give him fines and the level of said road, as he was bound to do by the said city ordinance. That he has made repeated applications and demands on the mayor and city surveyor to have said fines and levels run and made; but said Pifié, although repeatedly instructed and directed to perform his duty, has entirely neglected and refused, in consequence of which he has been stopped in his operations, and prevented from completing said road, and reaping the benefits and revenues which it would have yielded since the 15th July, 1835, to his great damage, $24,000 and upwards, without taking into consideration loss of credit, trouble and vexation, he has experienced, as will more particularly appear from a statement which he annexes. He alleges that both the corporation and J. Pifié, the agent, are liable in damages for the amount of Ms losses for their failure to perform their duties, and comply -on their parts with the contract entered into with Mm and the ordinance of the city council made on the subject. He prays judgment in solido against the mayor, aldermen, and inhabitants of New Orleans, and against Joseph Pifié for the amount [420] of his damage, as above stated.
    The defendants severed in their answers, and each pleaded the general issue.
    "When the cause was called for trial, the defendants applied to the court to be tried separately, which was opposed by the plaintiff’s counsel, but was permitted by the court. The plaintiff’s counsel excepted, and finally took a judgment of nonsuit and appealed. •
    
      
      JSoselius, for the plaintiff,
    contended that the defendants being sued in solido, had no right to sever in the trial. The cáse nrust he tried against all the parties at the same time; there is manifest error in the decision of the judge in permitting a severance on the trial, which should be corrected. The liability of the parties defendant arises from the same cause and under the same contract, and they must he tried together.
    
      Gcmon contra.
   Martin, J.

delivered the opinion of the court.

The plaintiff seeks damages from the corporation of New Orleans, on a contract for the construction of a railroad; and from J. Pilió, the other defendant, city surveyor, for his neglect and refusal to furnish him with the level and lines necessary to the construction of this road. Damages are claimed in solido. The defendants filed separate answers, and insisted on separate trials. This being objected to by the plaintiff, and the pretensions of the defendants being sustained by the court, the former took a nonsuit; but the parties have entered into an agreement of record as follows:

“ That whereas in this case a judgment of nonsuit has been submitted to by the plaintiff in order to enable the parties to try the question of the right of severance by the defendants in the supreme courtshould the decision on [421] that point he sustained, the plaintiff should have the right to reinstate his suit on the present pleadings; either party may amend.”

It appears to ns the parish court did not err. One of the defendants was sued on a contract, and the other on a tort. They pleaded sevez-ally, and had the right to do so. In the case of Sere v. Armitage, 9 Martin, 394, this court held that “if there be sevei’al defendants .in an action of trespass, and they plead separately, they may have the cause tried separately; but if they go to trialjointly, and suffer a verdict to he given against them, they cannot after-wards object to it as error.” There is an infinitely greater connection between trespassers who are sued for the same trespass than that between the pi'esent defendants, one of whom is sued on a contract, and the other on a tort.

It is therefore adjudged and decreed, that the judgment of the parish court he annulled, avoided and reversed; and that the cause be remanded for farther pi'oceedings, according to the agi-eement of the parties, the plaintiff and appellant paying the costs of this appeal.  