
    Carothers et al. v. Van Hagan et al.
    
    In an action of replevin against two or more, it is error to instruct tho jury, that “if either of the defendants was not guilty they must find for both; that one alone could not be found guilty.”
    
      Error to Muscatine District Court.
    
   Opinion by

GreeNe, J.

Replevin by Carothers against J. P.-and J. 13. Yan Hagan. Yerdict before a justice for the defendants, and an appeal taken by plaintiffs to the district court where the jury found one of the defendants not guilty; and thereupon both were discharged upon the instruction of the judge, that if either of the defendants was not guilty, they must find for both of them; that one alone could not be found guilty unless both were, as charged in the affidavit, even if hhe property did not in fact belong to the plaintiff. With much propriety, the plaintiff contends, that this instruction was -erroneous. No such principle is recognized by our statute; and as a general rule of law, in all actions for 'wrongs, any of the wrong doers may be jointly or severally proceeded against, and “the misjoinder of an innocent person'by mistake will not defeat the action, as it might in a suit on contract. Where several are sued for a tort one or more may be convicted and held in damages, although a-part of them be acquitted. 1 Chit. Pl. 98, 99; 1 Sand. 291 d (mx); 6 T. R. 766; Gould Pl. 209, § 75; 1 Cowens Trs. 560, § 4; 1 Salk. 32. As replevin is founded in tort, a failure to sustain tbe action against one, will not justify a discharge of the other defendant.

3. Whicher, for plaintiffs in error.

Hempstead <& Burt, for defendants.

As this point disposes of the case, it is not necessary to consider the other errors assigned.

Judgment reversed.  