delivered the opinion of the court.
We think the plaintiff should have been allowed to take a nonsuit in this case. The statute says : “ The plaintiff shall be allowed to dismiss his suit, or take a nonsuit, at any time before the same is finally submitted to the jury, or the court sitting as a jury, or to the court.” When a case is tried by a jury it has been the uniform construction of this law, in practice, to allow a party to get the opinion of the court upon the law of his case in the form of instructions and then withdraw his suit if that opinion is unfavorable. The same opportunity ought to bo afforded in cases where the court is permitted to decide the law and try the facts as a jury, if the parties request a declaration of the law from the court.
In this case the court took the question of law under advisement, and when the decision was made the whole case was decided together, and no opportunity given for a nonsuit. The instruction given for the defendant was merely an instruction upon the evidence that the plaintiff was not entitled to recover; but the character of the instruction can not vary the rights of the parties, and would rather seem to make it more imperative on the court to give the plaintiff an opportunity of determining whether he would proceed further with the case. The plaintiff can not insist upon immediate determination of the law asked for by the instructions offered; but if the court takes them under advisement, proceeding on with other business, it would seem to be reasonable, where no day is announced or by some rule of court established in
The judgment will be reversed, and the plaintiff has leave to enter a nonsuit;