
    McCully vs. Malcom et als.
    
    1. In actions for torts, if. it appear at the close of plaintiff’s case, there is one defendant against whom there is no evidence, he is entitled instantly to a verdict and judgment of acquittal.
    2. The genuineness of a warrant, and a judgment of a justice of the peace committing a defendant for trial, may be proved by third persons as well as by the justice, though such justice be present.
    3. A sheriff who is prosecuted for false imprisonment may introduce his return on a state’s warrant to prove that at the time of the imprisonment he had the warrant in his hands.
    4. Where a sheriff was prosecuted for false imprisonment, and justified the . imprisonment by virtue of a state’s warrant against the plaintiff, a copy of a bill of indictment found against the plaintiff on the charge for which he was arrested is not admissible. If the fact of the finding of the indictment against him were admissible at all, the whole of the proceedings should have been offered.
    
      This is an action for false imprisonment, instituted in the Circuit Court of Blount county, by David McCuIly against Malcom, Griffith, Matthews, and others. It was transferred to Knox county ; where, upon the pleas of not guilty and justification, it was tried by Judge Alexander and a jury.
    It appears that Matthews was a deputy sheriff of Blount county; that a warrant was issued for the arrest of Henry McCully for an assault with intent to commit murder in the first degree; that the warrant came to the hands of Mathews; that he arrested Henry McCully, and David McCully, also, on the ground that David attempted to rescue Henry; and that it was necessary to confine Mm for a short space of time to prevent a rescue of Henry.
    It appears that, at the trial which took place before Judge Lucky and a jury, at the February term, 1844, the testimony of the plaintiff having been closed, Griffiths’ counsel moved the court that “ an acquittal be directed”' as to him. The court “ thereupon ordered that the case of James Griffith be forthwith submitted to the jury.” The jury returned a verdict of not guilty, and judgment was rendered accoz’dingly. This is all that appears of record in regard to Griffith’s acquittal. The trial proceeded, and the other defendants were found guilty. The presiding judge set aside the verdict, and ordered a new trial. The case was again submitted to a jury under the direction of Judge Alexander, at the June term, 1847.
    The defendant, Mathews, the imprisonment of plaintiff by said Mathews, being proved, offered in evidence the warrant under which he arrested David McCully, and the return made by him thereupon upon proof by third persons that the warrant was written by the justice by whom it purported to have been issued, and by whom the judgment of committal was entered up. It appeared that the justice was summoned as a witness on the trial and was present at the time other persons were introduced to prove his hand-writing. This evidence was objected to, but the objection was overruled, and the evidence was submitted to the jury.
    The defendant also offered a copy of the bill of indictment which had been found by the grand jury against David McCully on the charge of murder in the first degree, for which he was arrested by Mathews.
    This was objected to. The objection was overruled, and the transcript submitted.
    A verdict and judgment were rendered for the defendants, and the plaintiff appealed.
    
      Sneed, for the plaintiff.
    1. The pleadings were improperly made up. When joint defendants plead one plea jointly, they cannot sever in a second plea. Whether this can be made available at this stage of the cause, is submitted to the court.
    2. The court erred in rendering judgment as to the defendant acquitted by the verdict of the jury in giving new trial as to part of defendants, and after new trial awarded to the other defendants, treating the case as against the remaining defendants only. 1 Starkie on Ev., 132, notes, 1 Green, on Ev., 501,etseq., 5 Hum. Rep. 365, 7 Hum. Rep., 236, ib., 255,1 Wash. Rep., 322, 2 Tidd’s Pr., 819,10 Pick. Rep., 16, 3 Hum., 273,4 Yer. 158.
    3. The court erred in .admitting the testimony of third persons to prove the warrant and judgment, when the justices were in the witness room.
    4. The court erred in allowing the transcript from Blount Circuit Court to be read. The matter is illegal. The whole transcript is not given; the certificate is not in form ; no law authorizes such transcript from this officer.
    5, The court erred in allowing the return on the warrant made by one of the defendants to be read, and giving it credit, and. making it proof for defendants that the officer had the warrant in his hand at the time of trespass committed. There being no proof that the officer had warrant when he made the arrest, his own return cannot be evidence that he did have it.
    
      T. G. Lyon, for the defendants.
    It is objected that the handwriting of Leonard Wood and James Henry, Justices of the Peace, were proved by other witnesses, the writers themselves being present and under the rule. It is well settled that the handwriting of a justice, áse., may be proved without calling the justice himself, or attempting to bring him into court. It would be idle and absurd to say that, because he was present, another rule should prevail. 9 Yer., 488. A letter may be proved to be genuine without calling the writer, and though the writer be present. 1 Starkie Ev., 392, 1 Greenleaf, sec. 82.
    2. When several are sued jointly for a tort, one or more may be convicted and one or more acquitted. Gould. PL ch. 4, sec. 75, and authorities there referred to. As separate verdicts and judgments may be rendered in such cases, it follows the Court may give a new trial to one or more as justice demands. 1 Greenleaf, 357,358,1 Starkie Ev. J 46.
    3. There is no error in admitting the copy of the record from Blount county. First: Because exemplified copies of office papers are always admitted. Greenleaf, sec. 501. Second: The indictment against H. McCully was only cumulative evidence that a felony had been committed and was well admitted, if for nothing else, in mitigation of damages; 2 Selw. N. P„ 290, Saunders P. & Ev. 521.
   McKinney, J.

delivered the opinion of tbe court.

This is an action of trespass and false imprisonment, brought by the plaintiff in error against the defendants and another in the Circuit Court of Blount county, and removed by change of venue to Knox county for trial. Verdict and judgment were rendered for the defendants in the court below, and the plaintiff prosecutes an appeal in error to this court.

Several errors have been assigned and insisted upon in the argument of this case.

1. During the progress of the trial, and upon the plaintiff’s case being closed, there being no evidence against the defendant, James Griffith, the defendant’s counsel moved the court that an acquittal be directed as to him; and it was accordingly ordered by the court that the case as to the said defendant be separately submitted to the jury, who, thereupon, returned a verdict of not guilty, and judgment was instantly rendered thereon, that the defendant go hence and recover his costs, &c., and the trial proceeded as to the other defendants.

In this proceeding we think there was no. error. It is well established that in actions for torts, being in their nature and legal consequences several, as well as ordinarily joint, and there being no contribution among wrong-doers, if one who is a material witness for the defendants has been improperly joined with them in the suit, for the purpose of excluding his testimony, the jury will be directed to find a separate verdict in his favor; in which case, the suit being at an end with respect to him, he may be admitted as a witness for the other defendants. But this can only be allowed where there is no evidence whatever against him. In what stage of the ease the party» thus improperly joined, might demand a verdict, and whether before the close of the case on the part of the other defendants, was formerly doubtful; but it is now settled, that if, at the close of the plaintiff’s case, there is one defendant against whom no evidence has been given, he is entitled instantly to be acquitted. ■ See 1 Green-leaf, sec. 357, 358. (Ed. of 1842.) It was not necessary in this case, as argued, that the judgment should be suspended to await the result of the trial or judgment as to the other defendants; being acquitted by the verdict of the jury, he was entitled to immediate judgment of discharge, and the case stood in all respects, as to the other defendants, as if he had not been a party.

2. The defendant, James Mathews, justified the trespass and imprisonment, alleged in the declaration, upon the ground that a warrant legally issued by a justice of the peace of Blount county, charging one Henry McCully with an assault upon a certain Thomas Ferguson, with intent to commit murder in the first degree, was placed in his hands to be executed, he being a deputy sheriff of said county, by virtue of which warrant he arrested said Henry McCully, and that the plaintiff attempted to assist in the rescue of said prisoner. Upon the trial, the original warrant upon which the arrest was alleged to have been made, was offered in evidence by the defendants, upon proof, by a third person, of the handwriting of the justice by whom it was issued, and also of the justice who •committed the defendant. This was objected to by the plaintiff upon the ground that both of said justices were witnesses in the case, in attendance upon the trial, and had been sworn and placed under charge of an officer, as ■witnesses for the defendants, It is insisted that said justices should have been called to prove the issuance of the warrant and judgment thereon, and that it was error, under the circumstances, to admit proof of their handwriting. We do not think so. The rule requiring the best evidence of which the case is susceptible to be produced, is not infringed in this case. This was not the substitution of an inferior for a higher grade of evidence.. The fact to be established was the genuineness of the warrant and judgment; and this might as well be done by the testimony of one acquainted With their handwriting and signatures, as by the parties themselves ; the evidence is of precisely the same grade. It may, as argued, excite suspicion that the refusal to call the justices was, because they might, upon cross-examination, have proved other facts adverse to the defendants; but it is a sufficient answer to this objection to say, that they might have been called as witnesses by the plaintiff. The fact that the justices were within call at the time of the trial, and witnesses in the case, does not vary the principle. A letter may be proved to be genuine, without calling the writer, though he be present. 1 Star. Ev., 391,1 Greenleaf, sec. 82. It is not necessary, as held by this court, to call upon the justice who issued an execution tp prove the fact of its issuance; it may he proved by another. 6 Yer., 488.

3. The next error assigned is, in permitting the officer’s return upon the warrant to be read as evidence in his own favor, of the fact that he had the warrant in his hands at 'the time of his arrest. In this there was no error. It is well settled that a return by the sheriff — being the official act of a public, sworn officer — is evidence against third persons. And, in the case of McBee vs. The State, Meigs’ Rep, 122, it was held by this court that the sheriff’s return upon a scire facias, in the case of a forfeited recognizance, cannot be averred against; that, if false, tbe remedy is by action on the case for a false return. So it is evidence against the defendant upon an indictment for a rescue, although not conclusive. Stark. Ev., vol. 2, part 2, 1032. It is also prima facie evidence in his own favor in actions brought by him. Hyskill vs. Givin, 7 Serg. & Rawle, 369; Connell vs. Cook, 7 Cow. Rep., 310. Furthermore, the presumption of law is in favor of the legal and proper discharge of his duty by a public officer, and of the truth of the facts stated by him in his official returns. We are of opinion, therefore, that the officer’s return upon the warrant was properly admitted in this case as prima facie evidence for him, subject, however, to be impeached and disproved, if false.

4. The copy of a bill of indictment found against Henry McCully in the Circuit Court of Blount county, for an assault upon said Thomas Ferguson, with intent to commit murder in the first degree, was admitted as evidence to the jury, though objected to by the plaintiff’s counsel. In this, we think the court erred. If, in any aspect of this case, the record of the prosecution against Henry McCully, upon said indictment, was irrelevant and inadmissible evidence, the entire record should have been produced, and not a part merely, showing the finding of a true bill, which may have had the effect to prejudice the plaintiff’s right, when, if the whole record had been produced, it might have appeared that the defendant had been acquitted on the trial. For this error, the judgment of the Circuit Court must be reversed, and the case be remanded for a new trial.  