The opinion
GANTT, C. J.
(Dissenting). — Concurring with my learned brother that the relator failed to establish by the testimony that five of the defendants or their agents were guilty of the charges against them in the information I am wholly unable to agree to his conclusion that because they challenged the *51 constitutionality of the statute under which they are prosecuted in common with their confederates, that they should for that reason be held to have confessed the allegations of the information.
As I understand the law, each defendant is liable only when it is shown to have been a party to the trust.
The fact that it was sued in common with others and filed a joint answer denying its liability, and also the constitutionality of the act, does not amount to a plea of confession and avoidance. I regard this part of the opinion and the conclusion against them as a radical departure in the construction of pleadings, and hence I dissent.
Robinson and Yalliant, JJ., concur with me in these views.