delivered the opinion of the court:
‘ The court have already granted two new trials in this case, and the jury have found a third verdict against the defendants, which, according to the view taken by the court, is directly contrary to the known and established rules of law, and this is a third application to the court, in behalf of the defendants, to bé relieved from this verdict. And the motion is in the first instance for a non suit, and in the event of that motion being refused, for a third new trial.
So far ás relates to the facts of the case, it will be sufficient to remark, that although there was some additional evidence, and perhaps stronger, adduced on this trial, as to the moral obligation of the parties, yet, so far as they concerned their' legal rights, they are precisely the same as those reported in 1 Nott fy McCord, 563. It will therefore only be necessary to give a brief summary of those on which the opinion of the court turns, and that too only with a view to state the question with precision.— The act of Congress prohibiting an intercourse between this country and England, usually called the non-inter
I have before remarked, that the facts out of which this question arises, were developed by the evidence adduced on the part of the plaintiff, and the conclusion deduced from them is, that he cannot recover, and the only possible objection to granting the non suit is, that it was not moved for in the court below. As a general rule, this court will, not hear a question which has not been made in the court below, but many exceptions to it have been allowed. One instance has occurred during the present term, in the case of the State vs. Billis, and my senior brethren inform me, that the instances in civil as well as criminal cases, have been frequent, and particularly applications for non suits, where it was evident that the whole case was before the court; as for instance, where the case depended on the construction of a written document, and if there is any case which would justify a departure from the rule, this does. It has been three times tried, and it would be doing injustice to. the plaintiffs to conclude that he had kept back any fact calculated to secure his recover ry, and it is seen that he cannot recover; in mercy therefore to the community, who have been harrassed with such repeated trials of this case, in mercy to the plaintiff himself, and to save him the vexation and expence
This being a contract between two citizens of the United States, I do not think it was done away dr impaired by any act of the general government. The respective rights of the parties remained to them, and with this view of the law, on the trial of the case, at first, I instructed the jury accordingly, who found for the plaintiff. But the law arising from the facts adduced in evidence having received a different interpretation from the Constitutional Court, and from the report of the presiding judge on the last trial, that the evidence is substantially the same, I can see no benefit which can result to the plaintiff by prosecuting his suit further, as it is not competent for the jury to find against what has been decided to be the established law. For which reason alone, I am induced to concur in the present judgment of the court for a non suit, and which fias been often ruled under similar circumstances.