dissenting: I submit to the decision which has just been read, but I am not satisfied that it is correct. The opinion of a majority of the court in Elmore v. Grymes, 1 Pet., 471, upon which this opinion is founded, was announced by the court in very few words, and no attempt is made to sustain it by reason or authority. On the contrary, the dissenting opinion of Judge Johnson in the same case is fortified by the weight of authority both in England and this country, and is supported by reason and legal principle. He shows that it is not the perfection of reason to hold that a court may indirectly put an end to a trial where there is no evidence, by directing a verdict for defendant, but that it may not do the same thing directly by ordering a nonsuit. The power conceded to the court is greater than the power denied it. So far as I am advised, the opinion of Judge Johnson has never been answered. It has happened, not infrequently, in the history of the law, that a doctrine has long obtained, supported by real or supposed authority, which when thoroughly discussed and examined, could not be sustained.
In our opinion, cited in another case pending in this court, it is stated substantially that the doctrine that an award alone was a bar to an ' action, -was long held in England, and till Lord Tenterden exposed its fallacy. And similar instan-. ces might be cited, where judges distinguished for ability, learning and integrity, have upheld principles or practices which subsequent investigation have proved erroneous.
I adopted the rule in this case in the second judicial district, because I was assured by experienced attorneys that it had long been the practice‘ in this territory, and because I believed it to be -right in principle and sometimes necessary, as in this case, to vindicate the authority of the court.
If New Mexico were a state, this question should be examined and decided upon its merits.
As it is, I can only acquiesce in the decision of a majority of this court.