delivered the opinion of the court.
This suit was filed in the court below to recover of the Deemer Manufacturing Company, a corporation engaged in the sawmill business, damages for injuries alleged to have been sustained by the plaintiff while in the employ of the defendant, by reason of the negligence of one of its servants. The plaintiff, on the occasion in question, was assisting in loading logs upon one of the defendants’ logging trains, and while so engaged a tree, cut by some one near where the plaintiff was standing, fell on him and broke his leg. At the close of the plaintiff’s evidence the court, on motion of the defendant, excluded it from the jury, and granted the defendant a peremptory instruction. The court committed no error in excluding this evidence and in granting this instruction, for the reason that plaintiff’s evidence wholly failed to show that the tree was cut by anyone in defendant’s employ, or that the defendant was in any way responsible therefor : all that the evidence disclosed with reference thereto *261being tbat some of tbe defendant’s employees were cutting timber in that vicinity shortly after plaintiff was injured.
After tbe court bad granted tbis instruction, tbe plaintiff requested tbe court to permit him to suffer a nonsuit, wbicb request tbe court declined to grant, and committed no error in so doing. Under tbe early common law a plaintiff bad a right to suffer a nonsuit at any time before judgment; but tbis rule was changed during tbe reign of Henry IV, A. U. 1400, by a statute providing tbat a plaintiff should not be nonsuited after verdict. 14 Cyc. 400; Washburn v. Allen, 77 Me. 352. Tbis seems still to be tbe rule in England, or at least was in 1852, when tbe case of Outhwaite v. Hudson, 7 Exchequer, 380, was decided, for tbe court therein said tbat:
“Tbe plaintiff’s power of demanding to be nonsuited continued to tbe last moment — until tbe jury bad given their verdict, or where tbe case is tried by a judge without tbe intervention of a jury until the judge bad pronounced bis judgment.”
With us, however, tbis rule.seems not to have been generally followed, for it was held by tbe courts of several states:
“Tbat tbe plaintiff, before opening bis case to tbe jury, or to tbe court, when tried before tbe court without tbe intervention of a jury, may become nonsuit as a matter of right; after tbe case is opened, and before verdict, leave to become nonsuit is within tbe discretion of tbe court; after verdict, there can be no nonsuit.” Washburn v. Allen, 77 Me. 344 ; 6 Ency. Pl. & Pr. 836.
Tbis uncertainty as to what the rule in tbis matter with us at common law is probably brought about tbe enactment of tbe statute wbicb now constitutes section 802 of tbe Code of 1906, wbicb provides that :
“Every plaintiff desiring to suffer a nonsuit on trial shall be barred therefrom unless be' do so before tbe jury retire to consider of its verdict.”
*262Under this statute, had this cause been submitted to a jury, plaintiff, of course, would not have been entitled to a nonsuit after verdict.
When a peremptory instruction has been granted, the cause stands in the attitude that it would have, had it been submitted to a jury and a verdict returned; for, where a peremptory instruction is granted, it is not.necessary for the court to go “through the useless formality of having the jury to retire and actually find the verdict directed; but the court should simply” render “judgment as if upon verdict found.” Hairston v. Montgomery, 102 Miss. 364; 59 So. 793. To require a jury, under such circumstances, to retire and actually find the verdict, when no discretion had been left to it in the matter “would be,” as‘was said in Bee Building Co. v. Dalton, 68 Neb. 38, 93 N. W. 930, 4 Ann. Cas. 508, “as useless and idle,” and almost as absurd, as the archaic practice of withdrawing a juror in order to secure a continuance.” Moreover, a request for a peremptory instruction presents an issue of law to be tried by the judge without the intervention of a jury, and therefore comes within the rule of the common law hereinbefore set forth, which prevents a nonsuit after “the judge has pronounced his judgment.” In the language of the court in Bee Building Co. v. Dalton, supra:
“To permit a party to dismiss under such circumstances is, in substance, to grant him a new trial after he has be,en fairly defeated, and to deprive his adversary of the fruits of a fairly won victory. It is contrary to good sense and sound policy to allow a party to take his case from one court to another until fortune favors him with a judge who is willing to accept his view of the law or his construction of the evidence. ‘ Such a mode of proceeding would, ’ as was said in Conner v. Drake, 1 Ohio St. 166, 170, 'be trifling with the court as well as with the rights of defendants. ’ One who is defending against a claim which he believes to be unjust ought not to be *263subjected to tbe expense of litigation which settles nothing. And since he is not permitted to choose another forum when it is discovered that the court is against him, it is manifestly unfair to give the plaintiff an unlimited freedom of choice.”
The case of State v. Powers, 52 Miss. 198, while not directly in point, is not without value in this connection. In Washburn v. Allen, supra, a most interesting review of the history of the common-law rule upon this subject may be found.
There is a line of cases which would authorize a plaintiff to demand to be nonsuited, even after the granting of a peremptory instruction; but an examination of them will disclose that they were decided upon the theory that it was necessary for the jury to formally return the verdict directed before it could be entered. Among these cases are Oppenheimer v. Elmore, 109 Iowa, 196, 80 N. W. 307; Vertrees v. Newport News Co., 95 Ky. 314, 25 S. W. 1; Chicago, etc., Ry. Co. v. Metalstaff, 101 Fed. 769, 41 C. C. A. 669; Gassman v. Jarvis (C. C.), 94 Fed. 603.
Affirmed.