#### Thompson and Mathews vs. Campbell.

1. It is erroneous to order a plaintiff to be nonsuited against his consent. 1 Peters, 471, 497 ; 6 Peters, 609.

2. When nonsuit may be taken.1

June, 1821.

— Appeal from Lawrence Circuit Court, determined before Benjamin Johnson and Andrew Scott, judges.

1

A plaintiff cannot be nonsuited against his consent, because he has a right by law to have his case submitted to a jury and the court. He may agree to a nonsuit; but if he does not choose so to do, the court cannot compel him to submit to it. Elmore v. Grymes, 1 Peters, S. C. R. 471; D’Wolf v. Rabaud, 1 Peters, 497; Crane v. Morris, 6 Peters, 609 ; Mitchell v. New England Mar. Ins. Co. 6 Pickering, 118; Bove v. Davis, 5 Blackford, 115; Marlin v. Webb, 5 Ark. 74; Wells v. Gaty, 8 Mis. 681; Hunt v. Stewart, 7 Ala. 525 ; Scruggs v. Brackin, 4 Yerger, 528.

A plaintiff' may take a nonsuit at any time before the court or jury have actually rendered a verdict. Dove v. Hawks, 3 McCord, 559 ; M'Lughan v. Bovard, 4 Watts, 308; Wooster v. Burr, 2 Wend. 295 ; Haskell v. Whitney, 12 Mass. 49, note.

In Arkansas it is provided by statute, that “ no plaintiff shall be permitted to suffer a nonsuit on trial after the jury have retired from the bar-, or the cause has been submitted to the court.” Digest, § 111, p. 813.

A nonsuit cannot be ordered by the court without the acquiescence of the plaintiff. The correct practice is to instruct the jury, that if the evidence has *9not proven a matter necessary to be proven, the jury must find for the defendant. Martin v. Webb, 5 Ark. 74; Ringo v. Field, 1 Eng. 49 ; Carr v. Crain, 2 Eng. 249.

Opinion op the Court.— It is clear that the court erred in rejecting the evidence offered by the plaintiff as stated in the bill of exceptions, and also in ordering the plaintiff to be non-suited against his consent.1

The evidence was clearly admissible to support the cause of action as laid in the declaration, and should have been received.

Reversed.