
    Wilbur Davis & al. versus Job M. Caswell.
    An action against two or more for a joint trespass cannot be sustained by evidence'of acts committed by one of them; and a judgment against both is not a bar to another action brought against one of them for a several trespass.
    Reported from Nisi Prius, Appleton, J., presiding.
    Trespass quare clausum, brought before a justice of the peace, alleging a breaking, entering, &c., on the 14th April, 1855. The writ is dated September, 1855. Plea, general issue, and a brief statement of title. When this action was brought into this Court, there was pending another action of trespass, commenced June, 1855, by same plaintiffs against same defendant, and one Fuller, for breaking and entering the same close on the first day of January, 1855, and on divers other days and times between that day and the date of the writ, and committing divers trespasses therein. In that action the plaintiffs recovered judgment for one dollar as damages, with costs.
    At May term, 1862, the defendant pleaded such former recovery, since the last continuance, waiving other defence. Evidence was introduced tending to prove, that, at the former trial, there was much evidence touching the running of lines by said Caswell, and the cutting and marking of trees thereon, and setting up stakes, and that plaintiffs’ counsel, in that case, introduced evidence of the running by said Caswell of one line on April 14th, 1855, and setting up a stake or stakes, and inquired of the witness if said Caswell cut away trees or bushes thereon; and it was testified, in this case, that the said evidence was received on that trial, without objection on the part of the defendants, although it' did appear that said Fuller was not present, at such running or setting up stakes or cutting or marking of trees on that line, and had nothing to do with it.
    The evidence offered in support of the action was of the same running of said line on the 14th April, 1855, and of setting up stakes thereon and marking trees thereon. And evidence was offered tending to show that the question of title was the main subject of inquiry on said former trial.
    Whereupon the Judge ruled that the trespass in this case, having been committed by defendant alone, it could not legally have been passed upon by the jury in the former suit, nor could judgment have been legally rendered for the same; therefore the former judgment could not be and was not legally a bar to the present suit. Thereupon the action was defaulted for one dollar damages, which is to be taken off, if the aforesaid ruling was incorrect, and a nonsuit entered.
    
      Gould, for the plaintiffs.
    
      Ruggles, for the defendant.
   The opinion of the Court was drawn up by

Appleton, C. J.

This is an action of trespass guare clausum fregit. The commission of the trespass sued for is not contested, nor that it was committed by the defendant alone. The defence is, that damages were recovered therefor in a suit between this plaintiff and the defendant and Henry D. Fuller, and that consequently this action cannot be maintained, whether such judgment was satisfied or not.

But in the action of trespass, commenced by this plaintiff against Job M. Caswell & al., for a joint trespass by them committed, the jury could legally have assessed damages only for their joint acts against them jointly. White v. Demary, 2 N. H., 546. "The result of the authorities, which are numerous,” says the Court, in Halsey v. Woodruff, 9 Pick., 565, "is, that when a joint action is brought against two for a trespass done, and there is a judgment against both, it must bo a judgment for joint damages.” If proof was received of a several trespass by either, it was not sufficient to charge both for a joint offence. Williams v. Sheldon, 10 Wend., 654. Though the evidence was received, it does not follow that the defendant has thereby' been injured. He does not prove, nor offer to prove, even if it .were admissible, that the verdict in the action, Davis v. Caswell & al., was rendered for the several trespass of Caswell. It is to be presumed, proper instructions were given upon the trial of that cause and that the verdict was' in accordance therewith. If so, damages for the trespass in suit were not included in the judgment which the defendant sets up as a bar to this action.

If the instructions were erroneous, or, being correct, were disregarded, of all which there is no proof, no one knows better than the learned and astute counsel for the defendant how those errors are to be corrected. They are not shown to have existed. They are not to be presumed to have existed. And if they existed, their correction should have been made in the suit in which they occurred.

Default to stand.

Rice, Cutting, Davis, Kent and Walton, JJ., concurred.  