The opinion of the Court was delivered by

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.

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