Daily Ohio statesman. [volume] (Columbus, Ohio) 1855-1870, 1867-07-25

ecution against another. Can it be sup
posed such an act would be a defense to a
suit brought for the trespass?s And there
is no difference, in principles, between
such legislation and that now under con-
sideration. pii3 ~ lt9 81 iHoi p. " gu
In 1882, on the facts disclosed by this
record, one citizen of Illinois committed a
trespass upon the rights of another, for
which the laws of Illinois then give, and
now give, a right of action. Since that
time Congress has said that the action shall
not be maintained. We must respectfully
ask, whence comes the power to Interfere
with the remedies furnished by the State
laws, through the State tribunals, for the
injury of one citizen by another. There
IS really nothing to be said in support of
this legislation. With all our respect for
Congress, we must hold these acts beyond
its constitutional authority. If they are
not SO, its power over persons and prop
erty is limited only by its own discretion,
and constitutional government is merely a
theory. ''-
There remains to be disposed of ques-
tion of practice. AS has been already stat
ed, only portion of the defendants plead
ed special pleas. After Judgment against
the plaintiff had been rendered on the de-
murrer, and he had elected to abide by his
demurrer, the court, against his objections
and at the instance of those defendants
who had pleaded only the general issue,
impaneled jury to try that issue as to
them. The plaintiff declined to offer any
evidence, and thereupon the jury found a
verdict for these defendants. The plain
tiff contends that they were not entitled to
trial of this issue, which Is final as to
them, but that judgment should have been
rendered in their favor on the demurrer to
the special pleas of their co-defendants, so
that, in the event the Judgment of the
Oh, ha lal
he might then have his recourse against all
the defendants. The rule is stated by Tidd,
page 895, as follows:
'.In actions OF tort. &C., where the wron g
| is joint and several, where the plea of one
defendant is such as shows the plaintiff
could have no cause of action against any
of the defendants, it shall operate to the
benefit of the defendants, and the plaintiff
cannot have judgment or damages against
those who let judgment go by default; but
when the plea merely operates in discharge
of the party pleading it, then it shall not
operate to the benefit of the other defend
ants.o r.a .-.---.s- e..t.- Is H.-s ....-.- .a
By this we understand that the defend
ant, who has pleaded the general issue only,
may, at his option, claim the benefit of a
judgments on demurrer in favor of his CO.
defendant who had pleaded specially, if
such plea showed the plaintiff could not
maintain his action against either. We dc
not understand, however, that he Is Obliged
to do so. He has the right 30 insist on a
trial of the issue made by his own plea, and
the plaintiff cannot compel him to claim
any benefit from the Judgment on the de-
murrer. tH4k Erl1 eHf .s.!- -
In the present case the plaintiff, on the
trial of the general issue, should have
proved the trespass. If. under the rule
quoted from Tidd, the defendants had
sought to avail themselves of the judgment
of the court on the special plea of their
co-defendants, and the court had permit
ted it, the plaintiff could have excepted,
and preserved against them in the record
the same question raised by his demurrer
to the special plea. Ii they had not sought
to do this but the evidence bad failed tC
show their participation in the trespass
they would have been entitled to verdict
and Judgment. ~,- 4 aGE .!-
This Judgment must be reversed, and
the case remanded. In order, however,
that our decision may not be misconstrued,
we deem it proper to add that, although the
matter of the special pleas is not bar to the
action, yet, on the trial, the defendants
will be permitted to prove the facts alleged
in them in mitigation of damages, and fol
the purpose ofarebutting the presumption
of malice. For the purpose of enablinl
the jury to determine Justly the Qudntane O.
damages to which the plaintiff may be en-
titled, the matters set up in these pleas
will be, if proved, proper subject of con-
sideration. .5... .-.ss q ....r .... g.
Reversed and remanded.