Lyon v. Sibley

32 Me. 576

Opinion

Tenney, J.,

orally.—It is the right of a Judge to order a nonsuit after the plaintiff’s testimony shall have all been given, if he deem it incompetent to maintain the suit. Such a proceeding would, of course, be subject to the plaintiff’s right of excepting.

But can a nonsuit be entered after the defendant has been allowed to introduce evidence? So far as we know, this question is now, for the first time, presented to the full court for decision. We think, in that stage of the case, a nonsuit cannot be ordered, not even if the Judge should consider the plaintiff’s evidence insufficient. The plaintiff’s case might derive aid from the defendant’s testimony. The defendant might put interrogatories to a witness, which the plaintiff could not. After evidence on both sides, the defendant has a right to insist that a verdict be rendered. Of the effect of the evidence in this case, we form no opinion. Our decision is based solely upon that principle, which secures to the court and to the jury their respective provinces.

Exceptions sustained.