Francis N. Fitch, Appellant, v. Elizabeth B. Hassler, Administratrix, etc., Respondent

Francis N. Fitch, Appellant, v. Elizabeth B. Hassler, Administratrix, etc., Respondent. (Argued June 20, 1873; decided September term, 1873.) Where, upon a trial, after the close of plaintiff’s evidence, a motion for a nonsuit is denied, and after defendant has entered upon his defence the court, upon its own motion, nonsuits the plaintiff, this is not of itself error. It is the duty of the court, believing it has committed an error upon the trial, to correct it at the earliest opportunity. This was an action of libel. At the close of plaintiff’s evidence defendant moved for a nonsuit, which was denied. The defendant thereupon entered upon his defence, and, after several witnesses had been sworn and examined, the judge stated that, upon further examination, he had concluded to nonsuit the plaintiff, and so ordered. Held, that this was not of itself error, but was the duty of the judge, believing he had committed an error ; that the evidence in the case, however, was such as required its submission to the jury. In consequence of the death of the original defendant no new trial was ordered. Francis N. Fitch for the appellant. James F. Starbuck for the respondent. [MAJORITY — Reynolds, C.,] Reynolds, C., reads for reversal. All concur. Judgment reversed.