The opinion of the court was delivered by
Coulter, J.At the last term this cause was argued, and the court determined to reverse or set aside the judgment of non suit entered by the court below, inasmuch as the action of assumpsit was, in the judgment of this court, well conceived, and would properly lie, under the facts and circumstances disclosed by the record, on the part of the plaintiff.
But it was ordered that the Court would hear further argument on the question, whether judgment should le entered for the plaintiff by this court, or the record remitted for further proceeding ?
*275It would have been quite anomalous-for the defendant to have sued out a writ of error to a judgment in his favor, to the whole extent of the case. It was much more reasonable that he should rely upon the usual course of sending the cause back, if the judgment of non-suit should be reversed by this court, for further proceedings ; and, in that event, he would have the benefit of his bill of exceptions to evidence, either by the court below entering judgment on the verdict, or by this court directing a venire de novo. In either alternative, each party would have the benefit of the application of the law to his whole case.
But if this court were to enter judgment for the plaintiff, the defendant would altogether lose the benefit of his bill of exceptions, although, perhaps, it may have been well taken.
This judgment of non suit could not have been entered at common law; and it is doubtful whether it was properly directed under the act of assembly, because the defendant did offer evidence; and there is peculiar fitness in the phraseology of the statute, which may have been intended to meet the category of this case, to wit: when a defendant had offered, evidence which was rejected, and the court sealed a bill of exceptions. But, under the practice, as this case will settle it, that will be of no moment.
The act of assembly is a useful one. It facilitates the despatch of business; concentrates the opinion of all the judges upon a point of law, which the judge sitting at the trial deems worthy of their consideration; and, no doubt, often prevents a case from being carried further. We are disposed, therefore, to give the act full play and scope, according to a liberal intendment of its phraseology, so as not to cut off, from either party, an important right.
The judgment of non suit is to be considered as if entered by the judge at the trial; and in this case it seems there was no motion for a non suit, which proceeded from the voluntary action of the court. When that judgment is removed, therefore, out of the plaintiff’s way, the defendant ought to be remitted to his bill of exceptions, which would be lost to him forever, if this court entered judgment for the plaintiff.
We think it the most advantageous course for the practice, the profession, and a useful application of the provisions of the statute, to remit the cause, and direct a venire de novo.
Judgment reversed, and a venire de novo awarded.