Govett against Radnidge, Pulman, and Gimblett

govett against badnidge, pulman, and gimblett. Tuesday, Nov. 16th, 1802. In an action'against three, wherein the plaintiff declared that they had the loading of a hogshead of the plaintiff's for a certain reward to be paid to one of them, and a certain other reward to the other two, and that the defendants so negligently conducted themselves in the loading, &c. that the hogshead was damaged; Held that the gist of the action was the tort, and not the contract out of which it arose; and therefore that on plea of not guilty, the two being acquitted, judgment might be had against the third, who was found guilty. [Not followed, Powell v. Layton, 1886, 2 B. & P. N. E. 372. Considered, Pozzi v. Shipton, 1838, 8 A. & E. 975. Approved, Marshall v. York, &c., Railway, 1851, 11 C. B. 663; see FtmlTces v. Metropolitan District Railway, 1879-80, 4 C. P. D. 278; 5 C. P. D. 157.] The declaration stated that on, &c. at, &c. the defendants had the loading of a certain hogshead of the plaintiff, then and there containing 1000 Ib. of treacle of 1001. value, in and upon a certain cart, for a certain reasonable reward, to be therefore paid by the plaintiff to the [63J defendants Pulman and Gimblett, and for a certain other reasonable reward to be therefore paid by the plaintiff to the defendant Eadnidge; yet the defendants then and there so carelessly, negligently, unskilfully, and improvi-dently behaved and conducted themselves in the loading of the said hogshead, &c. that by reason thereof the said hogshead was then and there, in such loading thereof, let fall, broke, and damaged, and the said treacle damaged and lost to the plaintiff. To this the defendants pleaded not guilty; and at the trial a verdict was found for the plaintiff against Radnidge with damages, and for the other two defendants. This matter first came before the Court in Easter term last, upon a motion for a new trial, against which cause was shewn in Trinity term following; but the Court then intimating that the objection, if any, appeared upon the record, it was agreed that it should be discussed upon a motion in arrest of judgment; and a rule nisi was made accordingly, grounded upon an alleged incongruity in the record; the declaration, as it was contended, setting out a joint contract, for the breach of which all the defendants were answerable either jointly or not at all; and the jury, by their verdict of acquittal of two of them, having negatived the joint contract as laid, and .consequently that no judgment could be given against the other defendant. On a former day in this term, Lens Serjt and Burrough shewed cause against the rule. The objection supposes that the declaration is laid in assumpsit, in which case the contract is the gist of the action, and must be found as laid; and therefore if it be laid as a joint contract against several, there can be no recovery against one only as upon a several contract. But here the [64] declaration is laid in tort, where the contract is shewn merely by way of inducement, and need not have been stated at all; and the gist of the action is the misfeazance, which in its nature is several, as the conversion in trover; and therefore there is no repugnancy in the finding one guilty, and acquitting the others (a). It would have been sufficient barely to have stated that the defendants...