#### J. B. EVERETT v. W. S. WILLIAMS and Wife.

(Filed 9 March, 1910.)

1. Judgment — Estoppel—Same Cause and Parties.

A verdict and judgment in a former action is an estoppel in a subsequent 'one between the same parties for the same cause of action.

2. Courts — Instructions—Verdict Directing — Nonsuit—Estoppel— Appeal and Error — Procedure.

A party is estopped by a verdict by not immediately taking a nonsuit and appeal before verdict entered under an instruction by the trial judge to the jury, or upon his intimation that he would so instruct or render judgment for the other party to the action.

3. Courts — Instructions—Verdict Directing — Burden of Proof.

The trial judge can always direct a verdict against the party to an action on whom rests the burden, of proof, if there is no evidence or presumption in his favor.

Appeal by plaintiff from GooTce, J., September Term, 1909, of MARTIN.

Tbe facts are sufficiently stated in tbe opinion of tbe Court.

Winston & Everett, A. B. Dunning for plaintiffs.

Martin & Oritcher, R. W. Stubbs, A. 0. Gaylord, for defendant.

Clark, C. J.

On a former trial between tbe same parties, tbe judge (having first refused a motion to nonsuit tbe plaintiff) instructed tbe jury that “under all tbe evidence their answer to tbe issue should be, No.” Tbe jury so responded, and judgment was thereupon entered against the plaintiff.

This action being between tbe same parties and for tbe same cause of action, bis Honor properly held tbe verdict and judgment in tbe former case an estoppel. When bis Honor instructed tbe jury to> render a verdict for tbe defendant (or upon intimation that be would do so) tbe plaintiff, if unwilling to be estopped, should have taken a nonsuit immediately, before tbe verdict was entered. Not having elected to do so, be is now estopped by tbe verdict.

Tbe plaintiff contends that tbe verdict and judgment in tbe former case are void because tbe judge cannot direct a verdict. Tbe court can always direct a verdict against tbe party on whom rests tbe burden of proof, if there is no evidence in bis favor. As in a criminal case tbe burden is on tbe State to overcome tbe presumption of innocence, a verdict in such cases *118can be directed against the State, but never against the defendant, though the court, in a plain case, may instruct the jury “if you believe the evidence you will find the defendant guilty.” This is not “directing a verdict.”

The whole subject is fully discussed in S. v. Riley, 113 N. C., 648; see, also, cases approving that case cited in the Annotated Ed. In S. v. Shule, 32 N. C., 153 (cited in $. v. Riley, supra), Pearson, J., said: “When a plaintiff fails to make out a case, the judge may say to- the jury that if all the evidence offered be trae, the plaintiff has not made out a case, and direct a verdict for the defendants, unless the plaintiff chooses to submit to a nonsuit.”

Affirmed.