
    Wooster vs. Burr.
    A plaintiff has g„bnritghto 'a nonsuit on tile jury, although prepared 'to certify a balof the defend-tbnofassumpsit,where a notice of set off has been given en.
    Motion to set aside a nonsuit. The action was assumpsit; the defendant gave notice of set off, the suit was tried, the jury came into court prepared to certify a balance in fa-var of the defendant, the plaintiff did not appear, and a nonsuit was entered. The defendant moved to set the same aside, and for a rule that he have leave to notice the cause for trial by proviso, or that the court express their opinion that the verdict ought to have been received as a direction upon a future trial.
    
      D. B. Tallmadge, for defendant
    The statute allowing set offs, (1 R. L. 515, 16,) is imperative, that if it appears that the plaintiff is overpaid, the jury shall find a verdict for the defendant, and certify to the court the amount, &c. and the sum so certified shall be recorded, and the defendant have execution. After a plea of tender, there cannot be a non-suit. (1 Camp. N. P. 327. 2 H. Bl. 377.) None but the defendant can demand the plaintiff. (1 Sir. 267.) In Massachusetts, it has been decided, (16 Mass. R. 317,) that after a cause is opened to the jury, either party may insist on a verdict
    
      Walker, contra.
    At common law, the plaintiff always had the right to submit to a nonsuit, and the statute has not taken away that right. Great injustice might be done had the plaintiff not that power. The practice of the New-England courts in this particular does not prevail here. Was the nonsuit set aside, the plaintiff could not be compelled to proceed to trial.
   By the Court, Savage, C. J.

There is nothing in the statute which changes the rights of the parties. The statute directs that the sum certified shall be recorded, but the verdict of a jury can be received only by the assent of the plaintiff; and when no verdict is pronounced, no sum is certified. Where a verdict was received without the assent of the plaintiff, it was set aside, (1 Wendell, 36;) and the court there held that it is the right of a plaintiff to submit to a nonsuit. The plea of tender is not analogous to a notice of set off; *^e former admits the debt, the latter not.

Motion denied, with costs.  