
    
      Hanks vs. Roberts.
    
    FanciBtE'iEN-TRY, &C, Case 14.
    January 16.
    Appeal from the Henry Circuit; Henry Davidge, Judge.
    
      Nonsuit. Instruction. Proof.
    
    If proof will not warrant verdict, error to overrule motion for instruction, asi» case of •aon-suit.
    
      Roberts, for appellant; Marshall, for appellee.
   Judge Buckner

delivered the opinion of the Court. ,

This was a case tried in the circuit court, upon a traverse taken in a writ of forcible entry and detainer, instituted by Roberts against Hanks.

After Roberts had closed the examination of his witnesses, Hanks moved the court to instruct the jury as incase of a non-suit: but the court overruled the motion; to which an exception was taken. An instruction was then moved lor by Hanks, which was also refused in the shape it was asked for, but given with some modiiieation. After this, Roberts introduced and examined another witness, whose testimony was not material to the issue. The proof introduced did not warrant the w rdict which was returned in favor of Roberts, and on which the court gave judgment in his favor. The motion i'or the non-suit ought, therefore, to have been sustained.

The judgment of the court below must he reversed with costs, and the cause remanded tor further proceedings to be had, not inconsistent with this opinion-,  