
    BARTON’S EXECUTRIX vs. HEMPKIN.
    Westekn .Dis.
    
      October, 1841.
    ON AN APPLICATION PON A Ill-HEARING.
    Where the plaintiff failed to make out her case hy full proof, the court on consideration, set aside the non-suit and remanded the cause for a new trial.
    
      Downs, for the plaintiff,
    applied for a re-hearing. He urged upon the court to change the judgment from one of non-suit, and allow the case to he remanded for a new trial.
   Garland, J.

delivered the opinion of the court.

Upon further consideration of the judgment rendered in this case, and upon the application for a re-hearing made by the plaintiff, the court is of opinion, the justice of the case will be promoted by setting aside the judgment of non-suit and remanding the cause for a new trial.

The judgment of the District Court is therefore annulled, and the verdict of the jury set aside as heretofore ordered; the judgment of non-suit set aside, and the cause remanded to the District Court for a new trial, to be proceeded in according to law, the defendant and appellee paying the costs of this appe al.  