Caria, per

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.