¶1If the defendant intended to object that another was justly interested with the plaintiff in the patent, he should have pleaded in abatement. The rule in England and this state is well settled, that a party having a common interest may sue in a separate action, and recover his individual injuries actions of tort. 1 Johns. 471; 6 Johns. 108; 8 Johns. 151; 6 Durn. & E. [6 Term R.] 766; 7 Durn. & E. [7 Term R.] 279; 1 Chit. Pl. 76.
¶2On the question as to the construction of the statute of 1S3G, increasing the damages, THE COURT ruled, that the jury had fixed the actual damages, which could only be varied by the court on satisfactory proofs that the plaintiff ought, by way of protection or smart money, to recover further damages.