In the plaintiff’s declaration there are two distinct counts or charges, one against the defendant John, and one against the defendant Nathaniel, to which they severally pleaded not guilty, and issues were joined thereon accordingly. But the jury was not sworn to try those issues, but to inquire of damages, and a verdict and judgment have been jointly rendered against both; so that it can not appear to this court that the merits of the cause have been fairly and fully decided.
Therefore, it is considered by the court, that the judgment aforesaid be reversed and set aside; that the cause be remanded to the court from whence it came, for new proceedings to be had therein, to commence by empannelling a jury to try the two issues aforesaid, and that the plaintiffs recover of the defendant their costs in this behalf expended; which is ordered to be certified to the said court.