
    
      John Marshall vs. William F. Reynolds, sen’r. William Liles and William F. Reynolds, jun’r,
    1. Where, on the trial of an action of trespass vi et armis, against three defendants, the proof fully made out the case against two of them, hut was slight as to the third, it was held, as to the third defendant, that his name could not he stricken from the record, nor the question, as to him, submitted to the jury, before the defence was gone into.
    2. The true rule in actions in form ex delicto is, that if there be no evidence against any one defendant, at the conclusion of the case, on the part of the plaintiff, such defendant is to be acquitted; and whether there is or not, must be left to the discretion of the presiding Judge. (Vide Childs vs. Chamberlain, 3 Chitty’s Practice, 213.)
    
      Before O’Neall, J. at Union, Fall Term, 1843.
    This was an action of trespass, for beating the plaintiff, stopping his wagon, and compelling him to fly from and leave it.
    The proof abundantly established the case against Wm. F. Reynolds, sen’r. and William Liles. The proof against Wm. F. Reynolds, jun’r. was slight; it was that while his father and Liles had stopped the plaintiff’s wagon, on Sunday, he went for the constable to seize the wagon, for a debt of his father, Wm. F. Reynolds, sen’r. against Jim Owens; he said his father sent him.
    The defendants moved to strike his name out of the record, or to submit the question against him to the jury before the defence was gone into. Both motions were overruled. As to striking out his name, slight as the evidence was, it might satisfy the jury of his participation. As to submitting the question, as to him, to the jury before the other defendants went into their defence, the court was of opinion it ought not to be done. The defendants had pleaded jointly. There was some evidence against him, and the plaintiff was entitled to have the issue decided against all.
    The case went to the jury, who found for the plaintiff, $400 against Wm. F. Reynolds, sen’r.; $400 against Wm. Liles, and for the defendant, Wm. F. Reynolds, jun’r.
    
      The defendant, William F. Reynolds, sen’r. appealed, on the following grounds:
    1st. Because the court should, on the motion of the defendants’s counsel, have ordered the name of William F. Reynolds, jun’r. to be stricken out of the record, against whom there was no evidence.
    2d. Because the court should have submitted the question of Wm. F. Reynolds, jun’r’s. guilt to the jury, as a collateral issue, that the other defendants might have had the benefit of his testimony, which was moved for, and overruled.
    3d. Because the damages were excessive.
    
      Thomson & Bowers, for the motion.
    
      Gaudelock, contra.
   Caria, per

O’Neall, J.

In this case, the court are satisfied with the decision of the Judge below.

We all agree that there was some evidence against Wm. F. Reynolds, jun’r. and where that is the case, it never was pretended, in England or this State, that he was to be acquitted in any other way than on a trial with the other defendants. The case'from Rice’s Reports, 95, McDonald vs. Ivy, very clearly shews, that the motion to strike out the defendant’s name from the record, could, under no circumstances, be allowed, when the case was on trial.

The true rule in actions in form ix delicto, is that which is stated by Park, J. in Childs vs. Chamberlain, 6 Car. 3 Chitty’s Practice, 213; it is, “if there be no evidence against any one defendant, at the conclusion of the case, on the part of the plaintiff, such defendant is to be acquitted.” Who is to judge whether there be any evidence against the defendant 1 Certainly not his counsel. For if that was the case, every case would be embarrassed with this preliminary issue. It is, unquestionably, for the Judge presiding, and is a matter which must be left to his discretion. The motion is dismissed.

Richardson, Evans, Butler and Wardlaw, JJ. concurred.  