
    MURRAY against M’DOUGALL.
    IN DOWER.
    Voluntary nonsuit irrevocable.
    On the trial of this cause at the Essex Circuit, before Pennington, J., the demandant voluntarily suffered a non-suit; a rule nisi had been taken on [696] the part of the demandant to set aside this nonsuit, and for a new trial, on the ground that the judge at the circuit had admitted, on the part of the tenant, illegal evidence. The cause being called in its turn on the paper,
    
      Van Arsdale for the tenant,
    brought up for the consideration of the court, as a preliminary, question, whether in any case, the court would sustain a motion to set a nonsuit aside which had been voluntarily suffered. The demandant voluntarily, of her own free will and accord, departs the court, and abandons her cause, and now requests to be reinstated.
    
      I. H. Williamson, for the demandant.
    If the [*] judge was correct in admitting the testimony, which we complain of, we have nothing to say: but if he was wrong, we were driven out of court by this erroneous proceeding. As the cause stood after admitting the testimony, it was clearly against the defendant; there was no use in taking a verdict. But we contend, that the testimony admitted on the part of the tenant, was illegal; if we are right in this, we ought to be reinstated, and, a new trial ordered.
   Kirkparick, C. J., and Rossell, J.

Were of opinion, that the demandant, by voluntarily suffering a nonsuit, was out of court, and had precluded herself from any claim on the court.

Pennington, J.

It’s every day’s practice to set aside a nonsuit improperly ordered by the court, if a judge at the circuit, has, by illegal admission or rejection of evidence, driven the -plaintiff to suffer a nonsuit. I am not satisfied but that the nonsuit should be set aside, and the plaintiff reinstated; and incline to the opinion, that the plaintiff be heard on the illegality of the testimony admitted at the circuit.

Rule refused.

CASES ADJUDGED IN THE Supreme Court of Judicature OF THE STATE OF NEW JERSEY. SEPTEMBER TERM, 1812. 
      
       Vide 1 Sell. 466; Bur. 2692; 1 Taunt. 10.
      
     