
    SWAN & HINKSTON, adm’r., &c., vs HYDE & JOHNSON.
    Where there is no evidence against a defendant, the finding of the circuit court against him will be set aside.
    
    APPEAL from Washington Circuit Court.
   McBride, J.,

delivered the opinion of the court.

The administrator of Swan sued Hyde & Johnson before a justice of the peace in Washington county, when Hyde filed an off-set. The cause was submitted to a jury, who not being able to agree, were discharged, whereupon the parties agreed to submit the case to the justice, who found for the plaintiffs, and entered judgment. The defendant, Hyde, then appealed to the circuit court of Washington county, when, the cause coming on for trial, it was submitted to the judge of the court, who found for the defendant, and entered judgment in accordance with his finding; thereupon the plaintiffs filed their motion for a new trial, assigning the usual reasons, which being overruled, they appealed to this court.

The circuit court was not called upon to decide any principle of law, but tried the cause exclusively on the evidence, which was sufficiently indefinite to embarrass a jury, and prevent its decision by them on the first trial. We are not prepared to say, whether the finding of the circuit court be correct or otherwise, inasmuch as there is a conflict of testimony, and we have not the advantage of knowing the witnesses, or seeing the manner of their testifying.

But there is a total absence of proof, implicating in any wise, Mary Swan, the administratrix, in the subject matter in controversy, between Hinkston and Hyde. The responsibility of Hinkston, does not necessarily attach to her, and as she is not coupled with him by the evidence, it was error in the circuit court to have entered judgment against her.

The other Judges concurring, the judgment of the circuit court will be reversed, and the cause remanded.  