
    Doe on the Demise of John A. Elmore, Plaintiff in Error, vs. William A. Grymes, and John J. Beatie, Defendants in Error.
    The Courts of the United States have no authority to órder a peremptory nonsuit, against the will of the plaintiff, on the trial <Jf a cause, before a jury. The plaintiff might agree, to a lion suit, but if he. do not so-choose, the Court cannot compel him to submit to it. {471}
    When the state.of. the record did not show a judgment of nonsuit to'have been entered, ^though the bill of exceptions states the fact, the plaintiff may. apply for a certiorari to bring up' a perfect record, or dismiss the writ of -error, and proceed de novo. ■ {472}
    AN action of ejectment was instituted in- the Circuit Court ' of the United States for the District of Georgia, for the recovery of 287| acres of land, , in which the plaintiffs, claimed title . as .follows: A grant from the state of Georgia to-Samuel Alexander : and' a déed.fróm John.Cessna, styling himself Sheriff of Greene county in the state of Georgia,” purporting to .convey-to Buchner Harris, by virtue of a salé under an execution against Herod Gibbs, “ two hundred and eighty-seven and a half acres of land in said county, on Little Beaver Pam, on the waters of Richland creek; and bounded on Academy lands, and land belonging to William Alexander, which land was formerly the. property of .Samuel Alexandera deed .from. Buckner Harris to Ezekiel E. Park, for, a tráct of land “ containing two hundred, and eighty-seven and a half acres, in the-county, of Greene, and state of Georgia, on. the Little Beaver Dam of Richland, creek;. being an equal half of the- double bounty of land granted to Samuel Alexander, adjoining Academy lands.”
    The plaintiff then introduced .a.witness,-who testified that-.‘‘Ezekiel Park was in possession of a tract of land lying in Greene-county, usually called-Park’s old mill tract, on.Beaver Dam creekj for about twenty years.” He then produced a' deed from Ezekiel E. Park to John -A. Elmore, for a tract of land “in the cóünty of Greene, and-state of Georgia, on the Little Beaver. Dam creek, or fork of Richland creek, being one equal- half of a double bounty tract, originally granted to Samuel Alexander, adjoining lands belonging to the University; -being the same originally sold and conveyed to Herod Gibbs, by the grantee, on the 14th of March, 1790.” He then éxhibited a deposition of the county surveyor, stating that he had made- a re-survey of the premises -in dispute, agreeably to a plot annexed to his deposition, which corresponded in its outlines with that annexed to the original grant, “Completely .covering the premises in dispute;” which he designated on the plat:
    ' • The plaintiff then called a witness, who testified that W. A. Grymes was in possession of the premises at the commencement of the action, and then closed his testimony.
    The defendant’s counsel, thereupon, moved for a nonsuit, on the following grounds:
    1st. Because the plaintiff had failed to make out his title by the documentary evidence on which he rested his case.
    2d. Because there was no sufficient evidence of possession, to give a. title, under and by force of the statute of limitations of Georgia.
    The Circuit Court ordered a nonsuit to be entered, against, the consent of the plaintiff; and a writ of error was prosecuted by him, and the cause brought before this Court.
    Upon the judgment of nonsuit, the defendants in error claimed to maintain before the Court-—
    That the Circuit Court had powér to order a nonsuit, without the assent of the plaintiff.
    The case was argued by Mr. Wild and Mr. M’Duffie for the plaintiff in-error, and by Mr. Berrien for the defendant.
    Mr. Berrien.—
    -The doctrine laid down in the books of practice, and adopted in some of the state Courts, i,s not supported by any express decision in the Courts of Great Britain. That proposition is, that a pláintiff, on the bare allegations of his declaration, without a tittle of proof, is entitledi.to demand the verdict of a jury in his cause.
    Any modification of this proposition admits the power, and objects only to the mode of its exercise. An examination of the adjudged cases in England will- show that they do not warrant the position. Watkins vs. Towers, 2 T. R.-.275, was a motion to enter nonsuit after verdict.
    Santler vs. Heard, was a verdict taken subject to, the opinion, of the Court, whether plaintiff ought not to have been nonsuit-ed. 2 Bl. Rep. 1031. 2 Salk. 669.
    Macbeth vs. Haldermand, 1 T. R. 172. The. point was not made, on a motion for a new trial. On reporting the fact, Butter J. said, that on the. trial, he had thought the plaintiff ought to be nonsuited; but his counsel appearing, when plaintiff was called, he had left the question to the jury. It is said — that the plaintiff .would be deprived of his writ of error to this Court. This is not so.
    
      Mnal judgments spoken of in the judicial Act, are meant to be contradistinguished from interlocutory judgments.
    . Any judgment which is fined in the suit, though not final, as 
      between' the parties, with the exceptions mentioned in the Act, may be brought here by writ of error.
    A judgment of nonsuit is such a judgment, and may be the foundation of a writ of error. The defendant is entitled to judgment and execution for costs. The suit is finally disposed of. It is a final judgment in a civil-action. In England, error lies on such a judgment. Box vs. Bennet,l H. Bl. 432. Kemp-land vs. Macauley, 4 T. B: 436. Evans vs. Phillips, 4 Wheat. 73, does not contradict this. The ground ef that decision was that the plaintiff had assented to the nonsuit. Why may not! the errors of the Court below, be corrected 'in this form, as ’• well as by an exception to instructions, or the.refusal to give them.
    - Mr. Wilde and Mr. M’Duffle, for the plaintiff in error.—
    1. It has always been considered that a nonsuit cannot be or"-•dered without the consent of the plaintiff, who has a right to submit his case to a jury and the Court; and the Court, should the jury érr,may order a new trial.
    In the Courts of the United States, another obligation exists to the exercise of such a power, as the Court has decided that a writ of error will not lie on a judgment of nonsuit; (Evans ■vs.' Phillips, 73,) it not being a final judgment. If the Courts below should have this power, a plaintiff may be prevented the opportunity of bringing his case before the highest judicial, tribunal of the, United States. If a Court, can-in any instance order a nonsuit against the consent of the plaintiff, it may only be when no questions of facts are involved, but the only matter before,the Court is a question of -law. This case exhibits facts upon which a jury were the proper judges. The plaintiff claimed .the land by possession, this, and the extent of the possession, was exclusively for the consideration of the jury.
    ■ The practice of the state of .Georgia as to the entry of non-suits, has been fluctuating. The' judicial system of that state does, not comprehend an appellate Court, with exclusive final judicial powers, but each Cir cuit Court has a right of granting appeals to itself, and on such appeals a second trial takes place, Hence, this point has been decided differently in different Courts, and at different periods; and hence the practice of the .Courts-of Georgia is unsettled, and as various, as it necessarily must} be, in the absence of a Supreme Court to regulate and determine the same.
   Mr. Chief Justice Marshall

delivered the opinion of the Court.-—

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 pf 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 en.able'this Court to render a final judgment, because the record is defective, in not shiow-inga judgment of nonsuit, entered in the Circuit Court. Although the bill of. exceptions states that fact yet the-record does not contain the judgment itself..

The plaintiff may therefore apply for a. certiorari, tp bring up a perfect record,-or dismiss-.the present writ of error and proceed anew; as his counsel may think best for the interest of their client. '*

.Mr. Justice Johnson

disseritiente—

The only question of any importance in .this cause, is,-whether U Circuit Court can, in any cáse, order, a plaintiff to. be nonsuit-ed, I’ordered the plaintiff-below-to-be'nonsuited, because the evidence was so inadequate to maintain his suit;.but had the jury found for him, I should haye set aside the-vérdict, and ordered a new- trial. The practice of the Court from which this.cause cpmes 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 bé examined is, whether upon the evidence introduced by the plaintiff, ádmitting it to be true, the jury can find a verdict for him. -So that, it is- in fact, a-substitute for-a demurrerio evidence,, or: for á motion for instruction, that the plaintiff cannot recover,- upon-the-cáse made out by him in, evidence.^

CTherb áre several- reasons, why I must maintain that the . Courts, of tlie sixth Circuit, have a right to exercise the power to order -, a nonsuit-, even against '.the will of the-plaintiff; and why it- would he wise,- in all our,Circuits, to' introduce the same practice.,

• It happens unfortunately for the defendant in ei'ror here, that a majority, of the.; Judges of this-Court have pursued a different practice in their .Circuits; but this',* I must insist, is no /Sufficient reason for subverting, otherwise, .thaij.. by rule, the practice of other states in which this right has been recognised in the administrationcdf justice, coevally with the existence of their Coufts.-Such has been the case ih the states of which-the sixth Circdit, consists', and the'Att-s. of 1789-and 1792, have, adopted -into the Courts of the United States; of'the, respective Circuits, not'.only the forms of process, bufthe ‘‘modes of proceeding,” in.'suits known-to the states respectively.'- That, this comes under the.’denomination of .a mode of proceeding, or in other . words, an. establishéd practice of the state comppsing the sixth ..Circuit,' appears to. me incontrovertible.

By what right then can tlüsCourt reverse a judgment of that. Circuit, founded'in a. practice thus sanctioned bylaw? It does, •seem to me, that, the defend ant beloW has a right in this judgment, vested ,bv express statute law, and pught notto. be put to the expensé of this reversal. For what, purpose is power. giVen to this, Court to alter the practice of the Circuits, by such re- , gulations. as they may deem, expedient, if such practice is nof to,he'held legal, until altered,by .a rüle of this Court? s

This Court surely does not riieah to decide, that such was not the received practice of that Circuit; this would be a decision in the teeth of positive fact; and if the purport of the decision be, thafitis an illegal practice, the immemorial practice itself,, and the 'Process Acts of the United States, furnish an express negative, to such & decision.'. .

The,idea seems to be, .that it is a .practice inconsistent with the relation in "which our Circuit Courts stand to this Court— that óúrs is not a Nisi jPriws system, or something to that effect. What then?’ This Court can alter the practice by a rule, but, tq overturn, á judgment, that has already been rendered under such ¿.practice, I must re$pectfully contend, approaches very pear to expost facto legislation, not adjudication; the proyince of which is to operate only upon existing laws. ■ But ibis not a practice appropriate exclusively, to a NisiPnuksystem, as is proved by this,' that writs of error aré sued out continually in England, upon judgment's, ori nonsuits, (see the cases cited in 1 ' Jlrchh. .Practice, 229-30,)' and,.though it.had been, the states-Were at liberty to adopt it into theirpractice, although the-A^'si Prius system be unknown, to- them.,■ That they had' adopted.it, isjcoriclu-sive against this, assumed incompatibility: And in' practice it subserves the purposes of'justice under our system, as effectually as a bill of exceptions, or a demurrer to evidence; and in several respects much better; It saves the practitioner from the weight of responsibility; which often results from being compelled to elect betWeep a voluntary nonsuit, and a démurrer to e vidence, or a bill of exceptions, which may terminate fatally to his cliept; and it. not unfrequently saves his client frbm the fatal effects, of negligence and misapprehension, either of himself or his attorney, or from surprise. -

In point, of convenience and expedition, in the administration of justice, I presume there cannot be two opinions,' .On this point, as far vsexemplumdocet, we may cite,Great Britain, Massachusetts and New-York, with some confidence, against Pennsylvania, Maryland, and Virginia.

But, it is contended, that in England the plaintiff is not non-suited, if he insists, on answering when called,' If the-fact be admitted, what then? England is not altogether, absolute in dictating to the Courts .of th'e'United States,'and if those, of the states of the sixth Circuit, have asserted some independence in their rules of practice on,this subject, I presume their right was unquestionable to. do so.

But I want no other authority than the Courts of Great Britain, to justify the practice of the sixth Circuit, in this behalf. From the earliest period we find the-English Courts, in'the exercise of this power, and whoever will examine the cases collected in Mr.'Morgan’s Treatise on the doctrine of new trials, (3 vol. Essays,) will find, what a very wide range has been taken by those Courts in the application of that practice.- Nor have the more modern cases manifested any inclination to retrace their steps,Its salutary'-effects are universally felt, and perhaps contribute as largely as any other' cause to the rapid progress of theiCourts in disposing of their dockets. If there exists any case prior to that of Macbeth vs. Haldeman, 1 Term R. 172, in Which the right of the plaintiff to refuse to be nonsuited was recognised, I cannot recollect it; since in that case it would seem that }n ordinary cases the right is recognised. But there is abundant proof that the British Courts do assert the power to control the exercise of that right,, by the plaintiff, when they think proper. In the cases, of change of venue, on motion of plaintiffs, 3 Black. 1031, the rigb't is disputed, on the assumed ground that he -undertakes to prove some material fact. Now, where can be the objection to applying the same reason to every case that goes to. a jury? 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„nó longer subjected to amercement if he fails to recover, and the right to .nonsuit him, where lie fails to produce evidence that will justify a verdict, is but a reasonable substitute for.the absolute penalty .to which-he was once subjected.

But it is. contended that án absurdity is produced, and an acknowledged right violated. ■ Yet the alternative exhibits a more direct and obvious absurdity,'since in-the case of Macbeth vs. Haldeman, and in every case of the kind, the Court asserts a positive control over the consciences of the jury, by telling them, “they,are bound to find for the, defendant.” And the greater absurdity must henceforward be incurred, of swearing a jury in a cause; and requiring a verdict at the caprice of a' plaintiff, who produces not a tittle of evidence to maintain his issue. Nor is any right of the .plaintiff taken from him, if his rights be regarded in their just extent. -He cannot claim a verdict of the jury if he does, not produce evidence to sustain it, and it is only in that case that he is, precluded from, submitting his' case to their conscience's. When we consider what Were the ancient- penal tiesfor a false verdict, before they were superseded'by the iniroduetjon of new trials; it must appear just -and reasonable, that the plaintiff should rather be exposed to the necessity of bringing a new suit, or moving for a new trial, .than that the jury should be subjected to attaint, at his will.! And on the subject of’ fiction, and legal absurdity, it is certainly too late at this day for our- Courts of Justice to be very fastidious, on a consideration which has been so thoroughly. set at nought, by the action of ejectment, fine arid recovery, and sundry other, matters of the kind; to which they have resorted •for the purposes of substantial justice and public convenience.

I must submit, I suppose, but I cannot do it without protesting ágainst the right 9f forcing upon my Circuit, the practice of other Circuits in this mode..

' Ry a rule of this Court, it is, unquestionably,, in the power of the Court to .do it. But until then, I can never know what is the" practice óf my own Circuit; until I come here to learn it.  