Hambleton v. McGee

Bartol, J., delivered the opinion of this Court: At the trial of this case, in the Court below, after the testimony of the plaintiff was concluded, the Court was asked to instruct the jury “that there was no evidence to charge the defendant, Thomas E. Hambleton, and that they must find a verdict in his favor.” The refusal of the Court to grant this instruction forms the subject of the first bill of exceptions. In actions for tort against several defendants, if, at the conclusion of the plaintiff’s' case, there is no evidence against one of the defendants, he is entitled to be acquitted; “so that all defendants, not fixed by the plaintiff’s evidence, are to be acquitted before any part of the defence is gone into.” This, said Parke, J., was the unanimous opinion of all the judges. Child vs. Chamberlain, 6 Car. & Payne, 213. (25 Eng.

C. L. R., 362.) Such practice is conformable to reason, and necessary for the furtherance of'justice; otherwise, it would be in the power of a plaintiff to deprive a defendant of the benefit of materia] and competent witnesses, by joining them in the action. See Brown and others, vs. Howard, 14 Johns., 119 . Van Deusen vs. Van Slyck, 15 Johns., 225 . Beasley vs. Bradley, 2 Swan’s (Ten.) R., 180.

But the rule on this subject, laid down in the books, as correctly stated by Oh. J. Thompson, in Brown vs. Howard, is, “that if there is any, even the slightest evidence against a party defendant, he cannot be discharged as a party, and received as a witness.” And he adds, “that the want of evidence against ⁴⁸ a party, in order to entitle him to be a witness, should be so glaring and obvious as to afford strong grounds of belief that he was arbitrarily made a defendant to prevent his testimony.” 14 Johns. R., 122. Applying this rule to the case before us, avo are of opinion that the decision of the Court of Common Pleas, as •stated in the first bill of exceptions, was correct.

The evidence on the part of the plaintiff, showed that the horse was hired on the 4th day of July, by Francis H. Hambleton. On the next day both the defendants, riding together, stopped, on their Avay to the city of Baltimore, at the house •of John 0. Price, in Baltimore county. The witness, Price, was unable to say which of them was driving.

The horse at that time was foundered ; the witness advised them to go on, as he thought that with care the horse would be able to go to Baltimore, but offered to let them have another horse. On that evening both the defendants went to the livery stable of the