
    John Corby, Administrator, Appellant, v. William J. Taylor, Respondent.
    
      Practice — Nonsuit.—Where the plaintiff takes a nonsuit voluntarily, without being forced thereto, the Supreme Court will not review the action of the court below.
    
      Error to Buchanan Court of Common Pleas.
    
    This action was brought by the plaintiff as administrator of Flaherty to recover the amount of two promissory notes executed to the said Flaherty by defendant.
    The defendant in his answer admitted the execution of the notes sued on; pleaded as a set-off that Flaherty, at his death, was indebted to the defendant for work and labor done and materials and lumber furnished, sold and delivered by the defendant to the plaintiff, &c.
    
      To this plea of set-off the plaintiff replied, denying the same ; pleaded also a former recovery.
    The cause was submitted to a jury upon the foregoing issues as made in the pleadings upon the trial; the plaintiff read the notes in evidence and closed his case.
    Instructions were given and refused for both parties ; the plaintiff excepting to the instructions given for defendant, took a nonsuit with leave to move to set the same aside.
    
      H. M. & A. H. Vories, for appellant.
    
      Ensworth, for respondent.
   Bates, Judge,

delivered the opinion of the court.

The instructions given for the defendant and the one refused the plaintiff referred solely to the set-off pleaded by the defendant, and not at all to the plaintiff’s cause of action stated in his petition. His cause of action was even admitted by the defendant. The nonsuit taken by him was therefore purely voluntary, and we will not review the action of the court below in refusing to set it aside.

Judgment affirmed.

Judges Bay and Dryden concur.  