Md.) CATANZARO DI GIORGIO CO. v. F. W. STOCK & SONS 387 "16th, November, 1910.-Judgment on ver- | defendant for the use of the plaintiff, would dict nisi. "17th, November, 1910.-Defendant's motion for a new trial. Reasons filed. Service admitted. be the amount of money received by the defendant for the use of the plaintiff, with interest in discretion of the jury. In Ruhl v. Corner, 63 Md. 179, it was held that a similar prayer was correctly refused, for it claims as the measure of damages that which belongs to the action of trover, and not to the form of action adopted by the plaintiffs. "3rd, December, 1910.-Petition of the plaintiffs, requiring the defendant to elect between the exceptions and its motion for a new trial, filed. Service admitted. "17th, December, 1910.-Defendant's mo- In the action of assumpsit, the plaintiff can tion for a new trial 'overruled.' "17th, December, 1910.-Judgment on verdict absolute in favor of the plaintiffs for the sum of $1,070.50, with interest from date and costs." We have thus transcribed and inserted the docket entries because it appears there are no bills of exceptions presenting the rulings of the court below, except upon the evidence and prayers, and the rulings of the court upon the motions are not set out by the record in a way so as to enable us to review them in this court. [1] It is clear upon all the authorities that no question shall be considered or passed upon by this court which does not appear by the record to have been raised or passed upon by the court below. Long v. Hawken, 114 Md. 240, 79 Atl. 190; Palmer v. Hughes, 84 Md. 658, 36 Atl. 431; New & Son v. Taylor, 82 Md. 41, 33 Atl. 435; Wilkin Mfg. Co. v. Young, 115 Md., 81 Atl. 879; Warren Bros. v. Kendrick & Roberts, 113 Md. 603, 77 Atl. 847, 140 Am. St. Rep. 445. [2] In this case, the rules of court are not in the record, and we have nothing except the docket entries, and these do not show why the court permitted the plaintiff to strike out the replication to the fourth plea, or why it struck out the fourth plea at all, and the presumption therefore is the court ruled and decided correctly. Cushwa v. Cushwa, 9 Gill, 247; Newcomer v. Keedy, 9 Gill, 263; Thorne v. Fox, 67 Md. 74, 8 Atl. 667; Stockett v. Sasscer, 8 Md. 375; Hutton v. Marx, 69 Md. 255, 14 Atl. 684. only recover for the money had and received from the sale to the use of the plaintiff. This prayer was therefore inconsistent with the form of action. Thomas v. Sternheimer, 29 Md. 268; Heinekamp v. Beaty, 74 Md. 393, 21 Atl. 1098, 22 Atl. 67. [4] The prayer is also objectionable in other respects: First it segregates a portion of the evidence, and directs the jury to find in favor of the plaintiff upon this evidence, and not upon the whole evidence; secondly, there was evidence tending to show that the defendant was a bona fide purchaser for value, which should have been embraced in the prayer for the jury to pass upon; and, thirdly, the prayer as framed did not present a sound legal proposition. Darrin v. Whittingham, 107 Md. 52, 68 Atl. 269; Poe's Pleading & Practice, vol. 2, § 301; Mt. Vernon Co. v. Teschner, 108 Md. 173, 69 Atl. 702, 16 L. R. A. (N. S.) 758; Christopher v. Christopher, 64 Md. 585, 3 Atl. 296; Buchanan v. Savings Institution, 84 Md. 436, 35 Atl. 1099. [5] The plaintiff's third, fourth, and ninth prayers were also erroneous, and should have been rejected. The third prayer was defective because it excluded from the consideration of the jury the evidence and defenses relied upon by the defendant to defeat the action, and contained an erroneous proposition on the facts of the case. The fourth prayer is subject to the same objections as stated against the first prayer, upon the measure of damages, and practically embraced the first prayer. Ruhl v. Corner, 63 Md. 179. Coming now to the rulings of the court upon the prayers and the evidence, it ap- [6] The plaintiff's ninth prayer was grantpears that at the trial the defendant re- ed in connection with plaintiff's first, third, served 40 exceptions, 39 to the rulings upon and fourth prayers. They are so absolutely the evidence, and the fortieth to the ruling inconsistent upon the measure of damages of the court in granting the plaintiff's first, that conformity with one necessarily imthird, fourth, and ninth prayers, and in replied a disregard of the one or the other. fusing the defendant's first, fourth, fifth, The theories of the prayers were conflicting sixth, seventh, ninth, fourteenth, fifteenth, and directly opposed, and were calculated sixteenth and seventeenth prayers, and in to mislead the jury, and should have been overruling the defendant's special exceptions rejected. Adams v. Capron, 21 Md. 186, 83 to the third and ninth prayers of the plain- Am. Dec. 566; Haney v. Marshall, 9 Md. 215; tiff. There were 27 prayers submitted in all. B. & O. R. R. Co. v. Blocher, 27 Md. 277; [3] The plaintiff's first prayer was clearly Farmers' Packing Co. v. Brown, 87 Md. 13, erroneous, and should have been rejected. 39 Atl. 625. It was error to have instructed the Jury [7] This brings us to a consideration of that the verdict must be for the plaintiff the defendant's prayers, and, in the view for the value of the goods at the time of we take of this case, we think the defendtheir sale to the defendant. The proper ant's fourteenth, fifteenth, and sixteenth measure of damages, in an action of this prayers should have been granted, as the kind, for money had and received by the appellant was entitled to the benefit of the statute of limitations under its third plea. | under an amendment to the action in asWhile these prayers do not refer to the sumpsit to a quantum meruit, this court held pleadings, the defendant's first and second it was a new suit, and the statute of limprayers do refer to them, and this, we think, itations was a bar to the action. is sufficient to permit an examination of the Chesapeake Ry. Co., 98 Md. 41, 56 Atl. 385, pleadings on these prayers. The first pray- Chief Judge McSherry, said: "Thus, in Hamer asked the court to instruct the jury that ilton v. Thirston, supra, it was held that a "there was no evidence under any count in plea similar in effect to the one we are conthe declaration," and the second prayer "re- sidering was proper because the amendment ferred to the material averments of the dec- of the declaration changed the form of aclaration." In Fletcher v. Dixon, 107 Md. tion." Mr. Poe, in his valuable work on 428, 68 Atl. 875, this court said: "It is true Practice (section 189), thus states the rule: that the prayer does not refer to the plead-"If the defendant omits to plead the statute ings, but defendant's D prayer did specifi- of limitations, and subsequently the declaracally refer to the third and fourth counts; tion is amended by the addition of other some prayers referred to the other counts; counts, the defendant is entitled to plead and defendant's H prayer referred to the limitations to such counts, and where the pleadings generally. The court's attention amendment materially changes the character to each and every count was therefore thus drawn by the prayers of the defendant to the pleadings." Leopard v. Canal Co., 1 Gill, 222; Giles v. Fauntleroy, 13 Md. 136; Rowe v. B. & O. R. R. Co., 82 Md. 504, 33 Atl. 761; Baltimore Bldg. Ass'n v. Grant, 41 Md. 569; Baltimore Elevator Co. v. Neal, 41 Md. 569; Baltimore Elevator Co. v. Neal, 65 Md. 438, 5 Atl. 338. [8] The defendant's third plea set up the defense that the alleged cause of action did not accrue within three years before the suit, and this plea under the facts of the present case was a bar to the action. The defendant's second amended declaration and the cause of action, filed on the 4th day of April, 1905, materially changed the character of the action, and made an entirely new case. The original suit had been instituted in assumpsit on the 5th day of June, 1901, and was changed on the 4th day of June, 1903, to trover, and on the 4th of April, 1905, the form of action was amended to assumpsit, and a new claim, demand, and cause of action filed with the declaration. These actions, one in tort and the other an action ex contractu, do not admit of the same pleas. The measure of damages in trover is the value of the goods at the time of the conversion, and in assumpsit the recovery is for the money had and received for the use of the plaintiff. In Schulz v. Fox, 53 Md. 37, it was held upon the filing of the amended declaration, under the circumstances of that case, the defendant had the right to interpose the plea of limitations as a defense to the new case thus made against him. In Hamilton v. Thirston, 94 Md. 256, 51 Atl. 42, where the original declaration was a suit upon an alleged oral agreement, and there was no count in the declaration on a quantum meruit for the value of the services, of the action the plea will be available." In 25 Cyc. 1308, the rule is thus laid down, as supported by authority: "An amendment which introduces a new or different cause of action and makes a new and different demand does not relate back to the beginning of the action, so as to stop the running of the statute of limitations, but is the equiva lent of a fresh suit upon a new cause of acthe amendment is filed; and this rule aption, and the statute continues to run until plies, although the two causes of action arise out of the same transaction. And if the plaintiff introduces a new claim and cause of action by the amendment against which the statute of limitations has run, that defense is available." 25 Cyc. 1304 and 1309. The filing of the second amended declaration and cause of action was equivalent to bringing a new suit as of the date of the amendment, and the defendant cannot be deprived of the opportunity of pleading the defense of limitations. Johnson v. District, 1 Mackey, D. C. 428. In the present case, the change of the form of action by the plaintiff's amendment introduced a new and different claim, demand, and cause of action, and this opened the case to the bar of the statute of limitations under the defendant's third plea, and there was error in not granting the defendant's fifteenth, sixteenth, and seventeenth prayers. As this conclusion disposes of the case, it will be unnecessary to consider the other rulings raised by the remaining exceptions. For the errors indicated, the judgment appealed from must be reversed, and as the plaintiff's demand, set out in the second amended declaration, is barred by limitations a new trial will not be awarded. Judgment reversed, and new trial refused, with costs to the appellant. Md.) (116 Md. 69) FIROR v. TAYLOR FIROR et al. v. TAYLOR. (Court of Appeals of Maryland. June 22, 1911.) 1. APPEAL AND ERROR (§ 324*)-SEVERANCE. Where one of two or more parties against whom a judgment has been entered at law desires to appeal, he should apply to the Court of Appeals for a writ of summons and sever ance. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1806-1809; Dec. Dig. § 324.*] 2. DISMISSAL AND NONSUIT (§ 26*) - JOINT TORT-FEASORS-NONSUIT. In a suit against joint tort-feasors, plaintiff may submit to a nonsuit before the close of his case, as well as when it is concluded, as to such of the defendants as the evidence does not sufficiently connect with the tort. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 46, 48-59; Dec. Dig. § 26.*] 3. PLEADING (§ 237*) - AMENDMENT-CONFORMITY TO PROOF. It was not error for the court, at the close of plaintiff's case, to permit plaintiff to amend his declaration to conform to the proof by limiting the allegation of negligence to two particular defendants. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 603-619; Dec. Dig. § 237.*] 4. NEGLIGENCE (§ 119*)-ISSUES, PROOF, AND VARIANCE-DATE. That an accident occurred on a different date from that named in the declaration is insufficient to prevent a recovery. [Ed. Note.-For other cases, see Negligence, Cent. Dig. § 212; Dec. Dig. § 119.*] 5. MUNICIPAL CORPORATIONS (§ 706*)-STREETS -WAGONS-NEGLIGENT LOADING. That beams being hauled over a city street projected over and beyond the edge of the wagon and came in contact with plaintiff as the wagon was being driven along the street did not of itself show that the wagon was negligently loaded. [Ed. Note. For other cases, see Municipal Corporations, Dec. Dig. § 706.*] 6. NEGLIGENCE (§ 139*)-INSTRUCTIONS. Where, in an action against defendants F. and S. for injuries to plaintiff, there was evidence sufficient to entitle plaintiff to recover against F., a request by S. to charge that there was no evidence legally sufficient to entitle plaintiff to recover, and that the jury's verdict should be for defendant S., was properly refused, as calculated to mislead the jury to believe that there was no evidence sufficient to sustain a verdict against F. 389 ants of one of the defendants, as well as negligently driven by the servant of the other defendant, the court erred in charging that, if the timbers had been negligently loaded, and the wagon was also negligently driven, plaintiff could recover against both defendants. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*] 9. TRIAL (§ 139*)-REQUEST TO CHARGE-DIRECTION OF VERDICT-QUESTION FOR JURY. Where there was evidence sufficient to justify submission of the case to the jury as against one of the defendants, the court properly rejected prayers offered by him, instructing a verdict in his favor. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 338-341; Dec. Dig. § 139.*] 10. TRIAL (8_251*)-INSTRUCTIONS-APPLICABILITY TO PLEADING. A requested charge, which did not correctly state the facts relied on as alleged in plaintiff's amended declaration, was properly refused. [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 587-595; Dec. Dig. § 251.*] 11. MUNICIPAL CORPORATIONS ($ 706*) STREETS-INJURIES TO PEDESTRIANS -NEGLIGENT DRIVING CONTRIBUTORY NEGLIGENCE. Where plaintiff, while standing on the curb, was injured by the overhang of timbers alleged to have been negligently driven around a street intersection, an instruction that, if plaintiff was standing so near to the curb as to render such an accident probable, and plaintiff in taking such position was not exercising ordinary care, he could not recover submitted the question of contributory negligence in as favorable a manner as defendants were entitled to. [Ed. Note.-For other cases, see Municipal Corporations, Dec. Dig. § 706.*] 12. TRIAL (§ 252*)-REQUEST TO CHARGE-APPLICABILITY TO EVIDENCE. Where, in an action by a pedestrian for injuries caused by his being struck by the overhang of timbers hauled along a city street, there was some evidence that one of the men on the wagon gave an alarm, but there was no evidence that plaintiff heard the warning, or knew that it was intended to warn him of danger from the contents of the wagon, a request to charge that, if plaintiff was warned, but was heedless of the warning, and maintained his. position when an ordinarily prudent man would have moved, he could not recover was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 596-612; Dec. Dig. § 252.*] 13. DAMAGES (§ 172*)-PERSONAL INJURIESPROFITS. Where, in an action for injuries, plaintiff testified that when injured he was operating a [Ed. Note.-For other cases, see Negligence, pool room, and that by reason of the injury he Dec. Dig. & 139.*] 7. TRIAL (§ 194*)-INSTRUCTIONS. Where, in an action for injuries, the question whether it was due to the egligent driving of the wagon by the agents of defendant F. was for the jury, a request by another defendant to charge that the immediate cause of the injury was due to the negligent driving of the wagon by F.'s servants was properly refused. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 439-466; Dec. Dig. § 194.*1 8. TRIAL (§ 252*)-REQUEST TO CHARGE-APPLICABILITY TO EVIDENCE. Where, in an action for injuries to plaintiff by his being struck by timbers so driven along a city street as to overlap the curb, there was no evidence legally sufficient to show that the wagon was negligently loaded by the serv was unable to longer operate it, and ultimately closed it, he was properly permitted to state the amount of profits he made from the pool room while he was operating it. [Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 490-492; Dec. Dig. § 172.*] 14. MASTER AND SERVANT (§ 330*)-INJURIES TO THIRD PERSONS-EVIDENCE Where plaintiff, a pedestrian, was injured by the overhang of timbers claimed to have been negligently loaded by the servants of defendant S. on a wagon alleged to have been negligently driven, evidence that defendant F. was the master of the driver, and that the accident was due solely to the driver's negligence, was admissible. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 330.*] *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes 15. JUDGMENT (§ 250*)-DECLARATION. Plaintiff sued four defendants for injuries sustained by being struck by certain timbers negligently permitted to project over a sidewalk as they were being hauled along a city street, charging that the timbers were negligently loaded by the servants of defendant S., and that the wagon was negligently driven by the servant of defendant F.; that by reason of the negligent acts of the "defendants" plaintiff was compelled to spend a large sum of money for medical attendance, etc. Plaintiff took a nonsuit against two of the defendants, and proceeded to judgment against the others. Held, that the declaration was fatally defective and insufficient to sustain a judgment against the two remaining defendants. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 436; Dec. Dig. § 250.*] 16. PLEADING (§ 240*)-AMENDMENT-MODE. Where an action was originally brought against four defendants, and at the trial two of them were dismissed and the declaration amended, the proper practice was to leave the original declaration in the case and file a new one against the remaining defendants, if it was desired to limit the allegations of negligence to them. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 636-641; Dec. Dig. § 240.*] 17. MASTER AND SERVANT (§ 304*)-INJURIES CONCURRENT NEGLI TO THIRD PERSONS GENCE. Where a third person is injured by the concurrent negligence of the servants of different masters, the law does not draw fine distinctions in determining which negligence was the proximate cause of the injury. [Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 304.*] Appeals from Baltimore City Court; Thos. Ireland Elliott, Judge. Action by Charles J. M. Taylor against Howard O. Firor and others. Judgment for plaintiff against defendants Firor and Saxton, and they appeal separately. Reversed, and new trial ordered. Plaintiff's amended declaration purported to charge Howard O. Firor, E. Saxton, the Pittsburg Valve Foundry Construction Company, and the mayor and city council of Baltimore with a cause of action for injuries, and alleged that on March 21, 1910, plaintiff was rightfully on the pavement or sidewalk on the corner of Fayette and St. Paul streets, in Baltimore city, and was exercising due and proper care, and while so rightfully on the pavement or sidewalk a wagon belonging to the defendant Howard O. Firor, and in charge and control of the agents and servants of the defendant Howard O. Firor, was driven along the public highway, near to the pavement or sidewalk, in a negligent and careless manner, which wagon was negligently and carelessly loaded by the agents and servants of the defendant E. Saxton with beams or timbers which protruded over such pavement or sidewalk, and the plaintiff was struck by the said timbers and his arm and shoulder bones were broken, and he was seriously and permanently injured; and by reason of the said negligent and careless acts of the "defendants" plaintiff was compelled to expend large sums of money for medical attendance, and was compelled to abandon the lucrative business in which he was engaged, and other wrongs then and there suffered and sustained, for which he demanded $10,000. During the trial, plaintiff took a nonsuit as to the defendants Pittsburg Valve Foundry Construction Company and the city, and proceeded to judgment against defendants Firor and Saxton alone. At the close of plaintiff's case, defendants Firor and Saxton having moved for a verdict on the theory that the complaint charged negligence against all the defendants, and that such allegation was not sustained by the proof, plaintiff asked leave in open court to amend the declaration, so as to charge that the wagon by which plaintiff was injured belonged to the defendant Howard O. Firor, and was negligently and carelessly loaded by the agents and servants of the defendant Saxton. Leave to make this amendment having been granted, the motion to dismiss made by defendants Firor and Saxton was denied. Defendant Saxton's third prayer prayed the court to instruct the jury that there was no evidence legally sufficient to prove that the loading of the wagon on the day alleged in the declaration was done in a negligent manner, and that their verdict must be for him. Defendant Saxton's first prayer requested that the court instruct the jury that there was no evidence in the case legally sufficient to entitle plaintiff to recover, and that their verdict must be for the defendant Saxton. Defendant Saxton's fifth prayer requested the court to charge that the immediate cause of plaintiff's injury was due to the negligent driving of the wagon in question by the agents of defendant Firor, and that their verdict must therefore be in favor of defendant Saxton. Plaintiff's first prayer, which the court gave, requested the court to charge that, if the jury should find from the evidence that plaintiff was standing on the sidewalk at or near the corner of Fayette and St. Paul streets, in Baltimore city, and that he was exercising ordinary care, and should further find that a wagon belonging to and in charge of an agent or servant of defendant Howard O. Firor was driven along the street, near the said corner, and such wagon was loaded with boards or timbers, nailed together, that extended or projected beyond the sides of the wagon, and shall further find the boards or timbers had been so placed or loaded by the agents or servants of defendant Saxton for the purpose of having been hauled or carried for Saxton through the streets of Baltimore, and shall find that in so loading the wagon Saxton's agents and servants did not exercise such care or caution as a reasonably prudent man would ordinarily exercise under like circumstances, and that the agent or servant of defendant Firor in a negligent and careless manner drove the wagon along the street, at or near the corner of Fayette and St. Paul streets, and that plaintiff was struck by the boards or timbers with which the wagon was loaded and was injured, then the verdict must be for plaintiff against both defendants Firor and Saxton. Defendant Saxton excepted to this instruction, first, because there was no evidence legally sufficient to show that the wagon was negligently loaded; and, second, because even if there was evidence legally sufficient to show such fact, the loading was the remote, and not the proximate, cause of the injuries. Defendant Firor's first, third, and fourth prayers were as follows: "First. The court instructs the jury that plaintiff has produced no legally sufficient evidence under the pleadings to entitle him to recover as against defendant Firor." "Third. The court instructs that under the whole evidence there has been produced no evidence legally sufficient under the pleadings to entitle plaintiff to recover against the defendant Firor. Fourth. The court instructs that there is no evidence legally sufficient to show that the driver of the wagon was at the time plaintiff was injured the servant of the defendant Firor, and hence the verdict must be in his favor." All of which were refused. Defendant Firor's sixth prayer, which was granted, was as follows: "The court instructs that if the jury find that the position in which plaintiff was standing was so near to the curb of the street, and so near to the southwest intersection of Fayette and St. Paul streets, as to render an accident probable with beams passing along Fayette street and turning down St. Paul street, and that if they shall further find that plaintiff stood in that position with his back toward the curb, and shall further find that the plaintiff in thus taking that position was not exercising the care that an ordinarily prudent person would exercise under like circumstances, then plaintiff is not entitled to recover, and their verdict should be for defendants." Defendant Firor's seventh prayer was as follows: "The court instructs that if the jury find that plaintiff was standing in the position on the sidewalk at the corner of St. Paul and Fayette streets, in Baltimore city, and in close proximity to the fire alarm box as testified by him, and further find that as the wagon mentioned in the evidence approached the corner plaintiff was warned of the danger of his position in respect to the contents of the wagon alleged to protrude over the pavement or sidewalk, and plaintiff was heedless of the warning and remained in such position, and the jury believed that an ordinarily prudent man under like circumstances, in the exercise of ordinary care, would have moved from such position, and if plaintiff had moved he would not have been injured, he could not recover." 391 BOYD, C. J. The appellee sued the Pittsburg Valve Foundry Construction Company and the mayor and city council of Baltimore, together with the two appellants (Firor and Saxton) now before us, for injuries alleged to have been sustained by him by being struck by beams or timbers which protruded over a sidewalk in Baltimore, while being carried in a wagon through one of its streets. During the course of the trial, verdicts were rendered in favor of the two corporations, but a verdict was also rendered against the two individual defendants, upon which a judgment was entered. They took separate appeals, which upon motion in this court were consolidated. [1] The case is a peculiar one, as each of the two appellants seeks to put the responsibility upon the other. As it had been recently repeated by us that, when one of two or more parties against whom a judgment has been entered at law desires to appeal, he should apply to this court for a writ of summons and severance (Oldenburg v. Dorsey, 102 Md. 172, 62 Atl. 576; P. B. & W. R. Co. v. Stumpo, 112 Md. 571, 77 Atl. 266), it would perhaps have been better to have pursued that course, but, as the appeals were with our leave consolidated, we will treat them as a joint appeal, although the fact that some of the exceptions were taken by the one or the other of them makes the record somewhat confusing. [2] The first exception of defendant Firor will first be briefly referred to. When the first witness mentioned in the exception was on the stand, the plaintiff called for the contract between the nayor and city council of Baltimore and the Pittsburg Company, and after examination of it one of the counsel for the plaintiff stated that they were satisfied that the city of Baltimore was not liable, and they consented to a verdict in its favor. Accordingly a verdict was rendered at once in favor of the mayor and city council of Baltimore, and judgment was entered thereon. The defendant Firor then moved to stay further proceedings, upon the ground that judgment had been entered in favor of the said defendant, but the motion was overruled. There was no error in that ruling. It is well settled that in a suit against joint tort-feasors the plaintiff may submit to a nonsuit as to such of the defendants as the evidence does not sufficiently connect with the tort in question; but, as was said in 1 Poe on Pl. & Pr. § 527, "in actions of tort against several defendants, if, at the end of the plaintiff's case, there is no evidence against one or more of the defendants, the |