Dawson

Action for malicious prosecution on a charge of perjury in verifying an answer in an action by Schloss and others against Dawson and others. On the first trial, plaintiff recovered a judgment against both defendants for the sum of five thousand dollars and costs. A new trial was granted to Schloss alone.

The new trial resulted in a verdict and judgment against Schloss for three thousand dollars, and Schloss alone appeals from this judgment against him, and from an order denying his motion for a new trial.

Both trials were by jury, and the judgment against Hinkle remains in force, but wholly unsatisfied.

*199 1. It is contended by counsel for appellant that no judgment should have been rendered against Schloss on the new trial so long as the original judgment of five thousand dollars existed against Hinkle; that “ while separate suits may be brought against each of joint tort-feasors, yet it is well settled that if the defendants are sued jointly, as here, there can be but one verdict and judgment.”

Such is not the prevailing rule in the United States. Says Judge Cooley, at page 159 of his book on Torts (2d ed.): “ The rule laid down by that eminent jurist, Kent, in Livingston…