
    CONSTITUTIONAL COURT, CHARLESTON,
    JAN., 1810.
    Isaac Clason v. Bird, Savage, and Bird.
    The Court of Common Pleas has power to order a nonsuit, whether the plaintiff will agree, or refuse to suffer it, in cases where there is no evidence which ought to be taken into consideration by the jury as proper evidence to maintain the issue, or where there is a total defect of evidence in relation to a material point', without which the verdict cannot be supported.
    Motion to set aside a nonsuit, ordered by Wilds, J., in Charleston District Court, January, 1800.
    The motion was argued in January, 1809, by Ward, and Dkaí-ton, for the plaintiff, and Curves, for the defendants. Many points were debated in the argument, relative to the propriety of evidence offered on behalf of the plaintiff, and rejected as inadmissible. The case involved various mercantile transactions, too multifarious, and of too little importance, in a legal point of view, to merit particular notice. The nonsuit had been ordered, contrary to the wish, or consent of the plaintiff, under an impression, on the mind of the court, that the evidence which had, gone to the jury, was not legally sufficient to authorize the jury to find a verdict for the plaintiff, though every disposition should be indulged to find in his favor, and all the weight and effect given to the evidence which could be given to it. One of the points made in the case, as a ground for setting aside the nonsuit, was, that the court had not power to order the nonsuit. It was contended, on the part of the plaintiff, that he had a right to choose to suffer a nonsuit, or abide the event of a verdict against him. On the contrary, it was insisted that a nonsuit may be ordered, where a plaintiff will pertinaciously refuse to consent to suffer a nonsuit, when advised to .do so by the court; as where there is no evidence relevant to the case, or what is the same thing, where there is a chasm in the evi. dence, a material link deficient, without which the plaintiff cannot recover.
    
      Note. See the ease of M’Fadden and wife v. Haley, 1 vol. 96. 2 T. R. 275. 2 Str. 267. 1 Wash. 89. 2 Bl. Rep. 1031. 1 T. E. 176. 1 Sellon 461, 84. 2 Tidd. 788- 2 Binney 234, Girard v. Gettig. The refusal of the court to order a nonsuit is no ground for a hill of exceptions; and per Tilghman, C J. It is out of the power of the court to order a nonsuit against the plaintiff’s consent, who may refuse to enter it, and insist on taking the verdict. But see 5 Binn. 320, per Brackenridge, J., in Morgan v. Stell. 8 Johns. 25. The court may order it without consulting the party.
   Waties, J.,

delivered the opinion of the whole court, except

Smith, J., who dissented, and Geimke, J., who was absent,

The court is not authorized to nonsuit a plaintiff, unless he will consent to it, where there is any evidence to support the action, however feeble and unsatisfactory it may seem. The jury have a right to consider of, and pronounce upon its sufficiency. But where there is no evidence given, which can be legally applied in support of the action, the court ought to interpose, and prevent the jury from deciding on it; or rather relieve the jury from the trouble of investigating, and making up an opinion on such irrelevant and immaterial evidence. The case is the same where some evidence is given which is pertinent and proper as far as it goes, but which cannot be deemed sufficient to authorize the jury to find a verdict for the plaintiff, though the evidence should be most favorably understood for the plaintiff. As for example : where the action is tro-ver, and evidence is given of property in the plaintiff, but no evi. dence whatever to prove a conversion.

Motion rejected.  