LINGAN v. HENDERSON.

shall be against him, because it appeared to the court the plain-
tiff had no cause of action, (a)

An action of covenant was brought against two for not building
a house for the plaintiff according to their covenant; judgment
was against one by default; the other pleaded performance, and it
was found for him. Whereupon it was moved in arrest of judgment,
that no judgment nor writ of enquiry of damages could be against
him, against whom the judgment was by default; because, although
in trespass, one may be guilty and the other not; yet in covenant,
debt or other contract where it is joint, the one cannot be convicted
without the other; and here by the verdict for one of the defend-
ants, that the covenant was performed, it appeared, that the
plaintiff had not any cause of action; and therefore should not have
judgment; and so should it be, although the defendant against
whom the judgment was by default had confessed the judgment.
It was also resolved, that the defendant should have costs on the
verdict against the plaintiff, for now it was a verdict against him,
and that he should have neither costs nor damages against the
other.(o)

In an action of trespass brought by Biggs against Benger &
Greenfield for entering his close and taking away his goods and
chattels, judgment was given against Benger by default; but
Greenfield as to the force and arms pleaded not guilty, upon which
issue was joined; and as to the entry and taking away of the
goods he pleaded, that Benger had leased to the plaintiff the close
therein mentioned for a certain rent, which being in arrear, he, the
defendant Greenfield, took the goods as a distress, and thereupon
the plaintiff requested and gave him license to sell the goods, and
to pay the money arising thereby to -the defendant Benger in satis-
faction of his rent, which was done accordingly. Upon which
issue was also joined; and a jury having been sworn to try the
issues and assess damages against Benger, they found a verdict on
the issues for the defendant Greenfield, and assessed damages
against Benger. Upon a motion in arrest of judgment against
Benger it was held, that this case of a license cannot be distin-
guished from a gift of goods, or a release which destroys the cause
of action as to all the defendants; and therefore the judgment "was
arrested as to both.(c)

(a) Martin v. Ayliffe, Cro. Jac. 134.—(b) Porter v. Harris, 1 Levintz, 63; Mor-
gan v. Edwards, 6 Taunt. 394; Weaver v. Prentice, 1 Esp. N. P. C. 860.—(e) Biggs
v. Benger, 2 Ld, Raymd. 1372; 8 Mod. 217.