By the Court, Willard, J.
We had no doubt, on the argument, that at the close of the proof, when the defendants’ counsel moved for the discharge of Goss and Banker, the evidence would have warranted the jury in acquitting all the defendants; and that the circuit judge would have been justified in nonsuiting the plaintiff The only question in the case is, whether the circuit judge erred in severing the defendants, and directing a verdict in favor of Goss and Banker, who, it appeared by the plaintiff’s own testimony, acted in obedience to the command, and in aid of, the defendant Taylor. Or, in other words, whether one of several defendants in an action for a tort, against whom there is the slightest evidence, can, under any circumstances, have his case separately submitted to the jury, so, that if acquitted, he may be used as a witness for his co-defendants.
The general rule is well settled, that one of several defendants jointly sued for a tort, may be acquitted and sworn for his co-defendants; whether they have united in the plea of not guilty or not. The cases are collected by the reporter in 3 Hill, 106, and need not be repeated, as the rule is not questioned. The reporter however adds, on the authority of some of the English cases, and Bates v. Conklin, (10 Wend. 389, 392.) and per Thompson, J., in Brown v. Howard, (14 John. Rep. 119,) that “if there is any, even the slightest, evidence against the defendant sought to be acquitted, he cannot be discharged as a party and received as a witness.” This rule, I apprehend, is stated too strongly, and needs qualification. In [359]*359Brown v. Howard, (supra,) which was for an assault and battery on the high seas, by a seaman against the captain and the first and second mates, a motion was made at the close of the case, for the discharge of the two mates, on the ground that they acted in obedience to the command of the captain, and were therefore justified. But the court below refused to discharge them, and on error to this court, Thompson, J. says, after stating the rule as above, “the want of evidence against a party must be so glaring and obvious as to afford strong grounds of belief that lie was arbitrarily made a defendant to prevent his testimonyand in remarking on the case then under consideration, he observes that “ all the facts relative to the transaction took place in the presence of the two defendants who were offered as witnesses, and were fully known by them when they obeyed the order of the captain. That this act of the captain being in itself illegal, and that being known to the other defendants, they were not excused for obeying itand he concludes by saying, “ that there was not the least justification for the captain’s treatment of the plaintiff, and the mates having been acquainted with the whole transaction, cannot be exonerated,” &c. But suppose the evidence had made out a justification of the mates, instead of the reverse, there is no reason to doubt that, in the opinion of the learned judge, they would have been entitled to a discharge. Had the law been as contended for on the argument of this case, the learned judge would have said at once, that one of several parties defendant making out a justification, is in no case entitled to a discharge. He puts it, however, upon other ground; admitting, by implication, that if their justification had been complete, they might have been discharged.
The case of Bates v. Conklin, (10 Wend. 389,) does not support the marginal note of the case, nor the principle above cited from the note to Moon v. Eldred, (3 Hill, 104.) The reason assigned by Chief Justice Savage why Windsor, one of the defendants in that case, ought not to have been discharged, was, that he united with the other parties in a plea of justification, and “ that there was not only some, but strong evidence [360]*360against him. It must always be a good ground against discharging a party if there is strong evidence against him.
The English rule, as stated by Phillips, (1 Phil. Ev. 73. See also Gilbert's Ev. 117,) is, that one of several defendants is not entitled to a verdict separately from the rest, at the close of the plaintiff’s case, although the plaintiff has failed in proving the charge against him : and therefore cannot be used as a witness for the other defendants, until the whole of the case of the other defendants, exclusive of the evidence which he may have to give, is entirely finished. When that is done, . and there is no evidence to implicate him, a verdict may be taken for him separately, with the consent of the counsel, and then he may be examined in behalf of the rest.
“ If any person,” says C. B. Gilbert, “ be arbitrarily made a defendant, to prevent his testimony in the cause, the plaintiff shall not prevail by that artifice, but the defendant, against whom nothing is proved, shall notwithstanding be sworn, * * * but this rule must be understood with reference to the case, when there is no kind of evidence against such defendant; for if there be evidence against him, though not enough to convict him, in the judge’s opinion, yet such person cannot be a witness for the others, but his guilt or innocence must await the event of the verdict; the jury being judges of the fact."
In what stage of a cause the defendant shall be entitled to a discharge, seems to rest in the discretion of the judge who tries the cause; but the rule generally followed in this state is, the one laid down by Phillips, in the text, i. e. at the close of the other proofs in the cause.
The English rule of thus requiring the consent of counsel, and that there should be no manner of evidence against the party sought to be discharged, the jury being the judges of the facts, is based upon the practice of the English courts, which never nonsuit a plaintiff against his consent. It is well settled, in the English practice, that a plaintiff cannot be compelled to be nonsuited, but he may insist on the case going to the jury, and take his chance of the verdí'ct. (1 Arch. Pr. 187. 2 T. R. 280. 1 Barn. & Ald. 252.)
[361]*361With us, however, the practice is different, and a plaintiff may be compelled to be nonsuited at the trial, when the evidence offered by him is not sufficient to support his action; there being no question of fact to be decided. (Pratt v. Hull, 13 John. Rep. 334. Clements v. Benjamin, 12 Id. 298.) And it is laid down as a general rule, that if the evidence would not authorize a jury to find a verdict for the plaintiff, or if the court would set it aside, if so found, as contrary to evidence ; in such case, it is the duty of the court to nonsuit. (Stuart v. Simpson, 1 Wend. 376. Demyer v. Souzer, 6 Id. 436, 7, 8. Wilner v. Williams, 14 Id. 146. Fort v. Collins, 21 Id. 109. James v. Acker, 23 Id. 480. Rudd v. Davis, 3 Hill, 287.) This rule has been sanctioned by the unanimous opinion of the court of errors in the last mentioned case. (7 Hill, 529.)
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By the Court, Willard, J.
We had no doubt, on the argument, that at the close of the proof, when the defendants’ counsel moved for the discharge of Goss and Banker, the evidence would have warranted the jury in acquitting all the defendants; and that the circuit judge would have been justified in nonsuiting the plaintiff The only question in the case is, whether the circuit judge erred in severing the defendants, and directing a verdict in favor of Goss and Banker, who, it appeared by the plaintiff’s own testimony, acted in obedience to the command, and in aid of, the defendant Taylor. Or, in other words, whether one of several defendants in an action for a tort, against whom there is the slightest evidence, can, under any circumstances, have his case separately submitted to the jury, so, that if acquitted, he may be used as a witness for his co-defendants.
The general rule is well settled, that one of several defendants jointly sued for a tort, may be acquitted and sworn for his co-defendants; whether they have united in the plea of not guilty or not. The cases are collected by the reporter in 3 Hill, 106, and need not be repeated, as the rule is not questioned. The reporter however adds, on the authority of some of the English cases, and Bates v. Conklin, (10 Wend. 389, 392.) and per Thompson, J., in Brown v. Howard, (14 John. Rep. 119,) that “if there is any, even the slightest, evidence against the defendant sought to be acquitted, he cannot be discharged as a party and received as a witness.” This rule, I apprehend, is stated too strongly, and needs qualification. In [359]*359Brown v. Howard, (supra,) which was for an assault and battery on the high seas, by a seaman against the captain and the first and second mates, a motion was made at the close of the case, for the discharge of the two mates, on the ground that they acted in obedience to the command of the captain, and were therefore justified. But the court below refused to discharge them, and on error to this court, Thompson, J. says, after stating the rule as above, “the want of evidence against a party must be so glaring and obvious as to afford strong grounds of belief that lie was arbitrarily made a defendant to prevent his testimonyand in remarking on the case then under consideration, he observes that “ all the facts relative to the transaction took place in the presence of the two defendants who were offered as witnesses, and were fully known by them when they obeyed the order of the captain. That this act of the captain being in itself illegal, and that being known to the other defendants, they were not excused for obeying itand he concludes by saying, “ that there was not the least justification for the captain’s treatment of the plaintiff, and the mates having been acquainted with the whole transaction, cannot be exonerated,” &c. But suppose the evidence had made out a justification of the mates, instead of the reverse, there is no reason to doubt that, in the opinion of the learned judge, they would have been entitled to a discharge. Had the law been as contended for on the argument of this case, the learned judge would have said at once, that one of several parties defendant making out a justification, is in no case entitled to a discharge. He puts it, however, upon other ground; admitting, by implication, that if their justification had been complete, they might have been discharged.
The case of Bates v. Conklin, (10 Wend. 389,) does not support the marginal note of the case, nor the principle above cited from the note to Moon v. Eldred, (3 Hill, 104.) The reason assigned by Chief Justice Savage why Windsor, one of the defendants in that case, ought not to have been discharged, was, that he united with the other parties in a plea of justification, and “ that there was not only some, but strong evidence [360]*360against him. It must always be a good ground against discharging a party if there is strong evidence against him.
The English rule, as stated by Phillips, (1 Phil. Ev. 73. See also Gilbert's Ev. 117,) is, that one of several defendants is not entitled to a verdict separately from the rest, at the close of the plaintiff’s case, although the plaintiff has failed in proving the charge against him : and therefore cannot be used as a witness for the other defendants, until the whole of the case of the other defendants, exclusive of the evidence which he may have to give, is entirely finished. When that is done, . and there is no evidence to implicate him, a verdict may be taken for him separately, with the consent of the counsel, and then he may be examined in behalf of the rest.
“ If any person,” says C. B. Gilbert, “ be arbitrarily made a defendant, to prevent his testimony in the cause, the plaintiff shall not prevail by that artifice, but the defendant, against whom nothing is proved, shall notwithstanding be sworn, * * * but this rule must be understood with reference to the case, when there is no kind of evidence against such defendant; for if there be evidence against him, though not enough to convict him, in the judge’s opinion, yet such person cannot be a witness for the others, but his guilt or innocence must await the event of the verdict; the jury being judges of the fact."
In what stage of a cause the defendant shall be entitled to a discharge, seems to rest in the discretion of the judge who tries the cause; but the rule generally followed in this state is, the one laid down by Phillips, in the text, i. e. at the close of the other proofs in the cause.
The English rule of thus requiring the consent of counsel, and that there should be no manner of evidence against the party sought to be discharged, the jury being the judges of the facts, is based upon the practice of the English courts, which never nonsuit a plaintiff against his consent. It is well settled, in the English practice, that a plaintiff cannot be compelled to be nonsuited, but he may insist on the case going to the jury, and take his chance of the verdí'ct. (1 Arch. Pr. 187. 2 T. R. 280. 1 Barn. & Ald. 252.)
[361]*361With us, however, the practice is different, and a plaintiff may be compelled to be nonsuited at the trial, when the evidence offered by him is not sufficient to support his action; there being no question of fact to be decided. (Pratt v. Hull, 13 John. Rep. 334. Clements v. Benjamin, 12 Id. 298.) And it is laid down as a general rule, that if the evidence would not authorize a jury to find a verdict for the plaintiff, or if the court would set it aside, if so found, as contrary to evidence ; in such case, it is the duty of the court to nonsuit. (Stuart v. Simpson, 1 Wend. 376. Demyer v. Souzer, 6 Id. 436, 7, 8. Wilner v. Williams, 14 Id. 146. Fort v. Collins, 21 Id. 109. James v. Acker, 23 Id. 480. Rudd v. Davis, 3 Hill, 287.) This rule has been sanctioned by the unanimous opinion of the court of errors in the last mentioned case. (7 Hill, 529.)
The difference between the English practice and that of this state, as to granting nonsuits, would seem to lead to a difference in the practice as to discharging defendants against whom the evidence was insufficient to convict. In Noyes v. Hewitt, (14 Wend. 143,) it was remarked by the chancellor in delivering the opinion of the court for the correction of errors, that the application to discharge one of several defendants, in an action for a tort, on the ground of there being no sufficient evidence against him to warrant a verdict, is in the nature of an application for a nonsuit; although, in form, the jury are directed to find the defendant, against whom there is no evidence, not guilty; and that if the court refuse to discharge the defendant, in a proper case, it is error.
In England, it has been seen that a plaintiff is never nonsuited against his consent. Hence, there is a propriety in that country, for the rule, which refuses to discharge one of two or more defendants, sued for a tort, against whom there is any evidence ; and in requiring, to entitle a defendant to a discharge, that there should be such absence of testimony as to create the belief that he was arbitrarily made a party to prevent his testimony in the cause. With us, this reason does not exist; for if the court may nonsuit a plaintiff against his consent, in any stage of the cause, after the proofs on his part are closed, and [362]*362thus put him out of court as to all the defendants, no reason, or principle, is perceived, why, in a proper case, the same result may not be reached as to one or more of several defendants, against whom the proof is insufficient to convict, by directing a verdict of acquittal. If this is done only in cases where a non-suit might be properly granted, if the defendants sought to be discharged, were sued alone; and especially, when, as in this case, there was ground to believe they were made parties to prevent their being witnesses, no injustice is done to the plaintiff, and there is no departure from the general analog.y of the law.
We think, therefore, that the circuit judge committed no error, in directing the discharge of Banker and Goss.
The motion for a new trial must be denied.