Girard against Gettig

Girard against Gettig. 1810. Philadelphia, Saturday, January 6. The refusal of the court to order a nonsuit, is no ground fo a bill of exceptions. IN ERROR. UPON the trial of this cause in the Common Pleas of Philadelphia county, Girard the defendant below moved for a nonsuit upon matter of law, which the court refused to order. He then produced his evidence, and in the end requested the court to charge that the plaintiff could not recover, which was also refused; and a bill of exceptions was sealed upon both points. The argument 'in this court by C. J. Ingersoll for the plaintiff in error, Shoemaker contra., and the decision thereupon, turned so much upon the circumstances of the case, without involving any disputed point of law, that it is unnecessary to give them in detail. But in delivering judgment, [MAJORITY — Tilghman C. J.] Tilghman C. J. stated the opinion of the court upon the first exception as follows. As it seems to be growing into a custom, to take an exception, because the court below would not order a nonsuit, it may save future trouble of that kind to declare our opinion, that such exceptions cannot be sustained; because it is out of the power of the court to order a nonsuit against the consent of the plaintiff, who may refuse to enter it, and insist on taking the verdict. This is no injury to the party who wishes the court’s opinion; because he may always prepare the particular point on which the opinion is desired, and the court is bound to give it. Judgment affirmed.