¶1— We do not assent to the proposition asserted by the counsel for the plaintiff in error, that the court could not grant a new trial, as to one party who was jointly sued, and refuse it as to another. In actions of tort, it is competent for the jury to find one of the parties guilty, and another not guilty. It may turn out also, that there may be no evidence conducing to show the guilt of one of the co-defendants, while, as to the others, there may be a strong-case made out. In all such cases, should the jury find a verdict of not guilty as to all, and the court should think a new trial ought to be granted, it would be doing great injustice to the innocent party, as against whom there was no evidence, to order a new trial as to him. Indeed it would have been regular, if the plaintiff had introduced no proof whatever of the guilt of one of the defendants, to have directed his acquittal before the jury passed upon the guilt of the others, had any reason appeared for ordering such discharge, as that the other defendants desired to examine him as a witness. Harris v. Burns et al.
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¶3If such was the effect of Pounds’ declaration, then the charge was right. But if this proposition is indefensible, ihe charge was clearly wrong; for if a just cause of action existed in favor of Pounds against Bichards and Bayfield, by reason of the conversion of the slave in controversy, this cause of action could not be defeated or released by any contract or agreement between the parties which is not supported by a valid legal consideration. 7 Ala. 175.
¶4This is not gainsayed by the counsel for the defendants in error.
¶5Turning then to the question as to the estoppel: It is an indispensable and essential requisite in estoppels of this character, (in pais,) that the representation or act should have influenced the conduct of the individuals setting up or alleging them. Ryers v. Farwell, 9 Barb. Sup. Ct. Rep. 618.
¶6*427Was Bichards in any way influenced to pay tbe money which he bid for the property to Bayfield, by the representation or declaration of the plaintiff? He had paid a portion of the money anterior to the making of such statement, and he had bound himself to Bayfield to pay the remainder. He had sent the money by his agent Pate, with directions to make such payment, and it does not appear that the agent was invested with any discretion as to the payment dependent upon what Pounds might say or do; or that he was even directed to call on Pounds, much less to govern himself by what should be said by him. Erom ought that appears, the interview between Pate and Pounds was altogether casual. Pate, who was a competent witness, and who could have proved, had such been the fact, that he had instructions to govern his conduct in respect to the payment by what Pounds should say respecting the validity of the sale, and that the payment was influenced by such declaration, and would not have been otherwise made, was not examined; and this strengthens the presumption, which arises upon the absence of proof showing the contrary, that these declarations had no influence upon the conduct of Bichards. As the charge cannot be rested upon this ground, it was erroneous; for it is clear, that the' court could not, from the proof, assume that Bayfield had a right to sell.
¶7Our conclusion, therefore, is, that the judgment must, consequently, be reversed as to Bichards, and the cause must be remanded.