Opinion by

A question is raised in this case as to the power of the court below to order a non-suit in an action on the ease, as to one of the defendants. The record states that after the evidence on the part of the plain*261tiff was concluded, the court directed a non-suit as to Hensliaw. As to whether the non-suit was ordered on the motion of one or all of the defendants ; or by consent of the plaintiff, or of the counsel of all parties ; or whether the plaintiff objected to the order of the court, or what reasons there were for directing the non-suit, the record is silent. If the plaintiff objected to the non-suit, he should have made his objection manifest on the record. In the absence then of record, we will presume the court below did right, and if necessary, that both parties consented and requested the court to discharge the defendant.

But we believe it will not be necessary to presume so much to sustain the action of the court. If in an action ex delicto, the court find there is no evidence against a defendant, or if the evidence be such that the court would not hesitate to set aside a verdict, for reason that the evidence did not sustain the same, we think the court may order a non-suit without the consent of the plaintiff. Otherwise, a co-defendant could be deprived of all witnesses.

Such an order is said to be no infringement of the declaration of rights, which secures the privilege of trial by jury. Perly v. Little, 3 Greenl. 97. For the exercise of such power see 1 Paine and Duer’s Prac. 540 ; 1 Wend. 376; 3 Greenl. 5 ; 1 Wend. 379.

We think the court did not err in sustaining the demurrer, and that by going to trial on the first and fourth counts, the plaintiff abandoned the second and third counts.

Judgment affirmed.