EASON and WIFE against WESTBROOK and GARLAND.

This is an action brought to recover damages on ■ ■ count of an alleged fraud in the sale of 57 acres of land, by Westbrook, who was sheriff of the county, and Garland, who was the purchaser.—The declaration charges that , ' , ' , . i . .... , ,. , . the sale was not advertised in the most public place in the county forty days, and that the Defendants by spiring, &c. caused the land to be sold at a sum for less than its value.

, On the trial the Defendant, Garland, was found not guilty, and Westbrook was found guilty. A new trial was motfed for by Defendant, for misdirection of the Judge, who in his charge told the Jury, that ifit appeared to their satisfaction that the sheriff, Westbrook, who sold the land in virtue of an execution, had not advertised the same for forty days, that irregularity alone, akho’ not the result of combination with any person or design to injure' the Plaintiffs, would nevertheless render him liable to them. ■ ,

an action in the nature of a writ of against two persons, and one be ac-found guilty,' thaUbfeo. tered up against that acquittal of* t.he otlier ground for a ”ew tna!i the judg. mellt*

*268 Gaston, for the Defendant,

cited the following author}-⅛*65> 6 East,422.—1 Ghitty, 255.—C. Litt, 282. $.-~Chittyt 194, 73, 74. . *

Mordeccñ for Plaintiff,

relied upon 1 Sanders, 230,— 1 Fd~ Raym, 378.

Ham., J.

delivered the opinion of the Court.

It is said in Fitzherbert's N. B. 116, K. that a writ of conspiracy for indicting for felony doth not lie but against two persons ⅛⅛ the feast, and that both or neither must be found guiltyf but a writ of conspiracy for indicting one of trespass or other falsity lieth against one person only.

And it appears from many adjudged cases that an action on the case in the nature of a conspiracy will lie against one, or if brought against many all may be acquitted but one,* so that it is no good objection to this action that one has been acquitted and the. other found guilty

^ *s sa’^ ‘n Chitty’s Pleadings, † if several persons be. made Defendants, jointly, where the" tort in point of law could not be joint, they may demur, and if a verdict bo taken against all, the judgment may be arrested, or reversed On writ of error.—In this case, the declaration charges both Defendants with that of which one only can. be guilty, viz. that the land was not advertised in the most public place in the county for forty days. This is a charge that can only be made against the sheriff, whose official duty it was so to advertise it, and in case a ver-, diet had been taken against both, advantage might be taken of it in either of the ways pointed out: but a verdict has been taken against the sheriff only and the other acquitted, which does away the objection. Ibid, -as in an action against husband and wife for that they Spoke of the Plaintiff certain scandalous words, the Jury found the husband guilty, and the wife not guilty, the Plaintiff shall have judgment; for tho’ the action ought not to be *269against both, and therefore if the Defendant had demurred to the declaration, it would have been bad, yet the verdict hath cured this error.‡ Indeed if the Tury, in , •. T j j ■> the preseht case, had found both Defendants guilty, the Plaintiff might have entered a nolle prosequi 'against Garland and taken judgment against the qther.§ whether ... pi ' i ' " ‘tr the charge of the court was right or not» Westbrook has no right to complain—if wrong, it was only so as to Garland, who has now no r„eáson to complain, as the Jury have acquitted him. I think a new trial ought riot to be granted.-