
    Sarah Bates v. Wilkins Smith and John M’Carty.
    In an action of trover against two defendants, where a conversion has been proven against hut one, and a verdict found against both, a new trial will be granted, unless the plaintiff will discontinue as to the defendant, against whom no conversion was proved.
    This case was tried before Mr. Justice Johnson, at Edgefield, October Term, 1819.
    It was an action of trover for a horse, in which the plaintiff had a verdict. Property in the plaintiff, and a conversion by the defendant, M’Carty, was satisfactorily proven ; but there was no evidence whatever of a conversion by the defendant, Smith, and this circumstance furnished the only ground of a motion for a new trial.
   The opinion of the Court was delivered by

Johnson, J.

There is no doubt that the verdict is wrong as relates to Smith, and it is equally manifest that it is right as relates to M’Carty. It is unreasonable to send the plaintiff back and delay her, until a second trial can be had, after there has been a full and fair investigation of the case, in which the liability of one of the parties is manifested; and it is *oku equally unjust, *that the other defendant, against whom there was 8 J no proof, should suffer by the verdict.

I am, therefore, of opinion that a new trial ought to be granted, unless the plaintiff will discontinue as to the defendant, Smith, and this, with the unanimous concurrence of .my brethren, is made the order of the Court.

Colcock, Nott, Gantt and Biohakdson, JJ., concurred.

1 N. & McC. 354, and. note; Post. 141.  