The plaintiff failed to establish either of the breaches assigned in his declaration. The only question presented by the record, therefore, is as to the propriety of the decision, in instructing the jury to find as in case of a non suit. This court, in the case of Carr v. Crain et al. 7 Ark. Rep. p. 249, said that «the plaintiff in ’error, after the testimony was closed, moved the court to instruct the jury to find as in case of a non suit. The power of the Circuit Courts to order peremptory non suits was fully discussed and settled in the case of Martin & Van Horn v. Webb, 5 Ark. Rep. 74. The court in that case fully recognized the doctrine laid down in 1 Pet. 471, Elmore v. Grimes, where it is held that a non suit could not be ordered in any case without the consent and acquiescence of the plaintiff. The plaintiff might agree to a non suit, but, if he do not so choose, the court cannot compel him to submit to it. The correct motion is, to instruct the jury, that, if the evidence has not proved a matter necessary to be proven, they must find for the defendant. This point has been repeatedly ruled by the Supreme Court of the United States, and is not now open to controversy.” It is manifest, from this authority, that, although the evidence should be utterly insufficient to sustain the action, yet the court would not be at liberty to instruct the jury to find as in case of a non suit. The jury are bound to pass upon the evidence, such as it may be, unless the plaintiff shall consent to a non suit. The court ruled correctly, in excluding the bond offered by the plaintiff. It could not have tend*494ed in the slightest degree to establish the truth of either of the breaches laid. But, inasmuch as the court peremptorily ordered the jury to find as in case of a non suit, the judgment must be reversed.
State ex rel. Sayle v. Roper, 8 Ark. 491 (1848)
State use of Sayle vs. Roper et al.
The court cannot instruct the jury “to find for defendant, as in case of non suit,” it being the province of the jury to determine upon the sufficiency of the evidence.
The correct practice is, for the court to charge the jury, that, if the plaintiff has failed to establish a matter necessary to be proven, they must find for defendant, as repeatedly held by this court.
Irrelevant matter properly excluded from the jury.
*492 Appeal from the Circuit Court of Phillips County.
This was an action of debt, on a constable’s bond, brought in the name of the State, for the use of Sayle, against Roper, the constable and principal in the bond, and Coolidge his security, determined in the Phillips Circuit Court, at the May term, 1847, before the Hon. Wm. C. Scott, Judge.
The declaration set out the bond, and assigned two special breaches thereof: 1st, That Sayle sued out an attachment from a justice of the peace, against one Olney, and placed it in the hands of Roper, as constable, to be executed 5 and that, though the goods of Olney were shown to him, he refused and neglected to levy the writ, whereby Sayle lost his debt, &c. 2d, That Roper neglected and refused to summons said Olney, as commanded by said writ, though he was within his township, &c. The defendants entered a plea, in short upon the record, denying the truth of the breaches, and the cause was submitted to a jury. It appears, by a bill of exceptions taken by the plaintiff, that, on the trial, plaintiff introduced the following evidence:
1st. An authenticated copy of the bond sued on; 2d. The papers and proceedings in the attachment, case referred to in the declaration, showing that an attachment issued at the suit of Sayle against Olney and came to the hands of Roper, to be executed, as alleged in the declaration; and, moreover, that Roper returned upon the writ that he had attached a horse of Olney’s, and allowed him to retain possession of it, on his executing bond as required by law: also, that judgment was rendered against Olney, execution issued to Roper, and returned nulla bona.
Plaintiff then offered to read to the jury, as evidence, a forthcoming bond taken by Roper of Olney in an attachment suit, wherein one Richard Bordley was plaintiff, and Olney defendant. The object of introducing this bond does not appear from the bill of exceptions, but the court excluded it, and plaintiff excepted. When the plaintiff closed bis evidence, on motion of defendants, the “court in*493structed the jury1 to find for defendants, as in case of non suit,” to which plaintiff excepted. Yerdict and judgment for defendants, and plaintiff appealed.
Cummin'S, for appellant.
The court erred in instructing the jury to find as in case of non suit. Ringo v. Field, 1 Eng. Rep. 43. Carr v. Crain et al. 2 Eng. Rep. Martin v. Van Horne, 5 Ark. Rep. 72.
W. H. & A. H. Ringo, contra.