by John Marshall

“ Does not a plaintiff, in fact, undertake the same thing whenever he troubles a Court with his suit, and has a jury sworn to try his cause upon evidence? he is no longer subjected to amercement if he fails to recover, and the right to nonsuit him, where he fails to produce evidence that will justify a verdict, is but a reasonable substitute for the absolute penalty to which he was once subjected. ”

“ The practice of the Court from which this cause comes up, is this; when the plaintiff has closed his evidence, the defendant is at liberty to move for a nonsuit, or proceed with his testimony. If he introduces evidence, it is too late to move for a nonsuit; and the question always to be examined is, whether upon the evidence introduced by the plaintiff, admitting it to be true, the jury can find a verdict for him. ”

“ The Court has had this case under its consideration, and is of opinion that the Circuit Court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a trial by a jury, and to have had the case submitted to them. He might agree to a nonsuit; but if he did not so choose, the Court could not compel him to submit to it. But the state of the record does not enable this Court to render a final judgment, because the record is defective, in not showing a judgment of nonsuit, entered in the Circuit Court. ”