The distinction between those cases in which there is some evidence, and those in which there is-none, touching a material matter, is familiar.
In the former case the Court submits the evidence to the jury, with an explanation of the law applicable to the case., but in the latter the Court tells the jury that there is no evidence for them to consider,-and at once withdraws it from their consideration.
This rule applied to the present case entitles the defendant to a new trial.
*54The object of the action is to have the plaintiff’s deed to the defendant surrendered and cancelled, on the ground that it had been obtained by the fraudulent misrepresentation of a fact by the defendant in regard to the final determination of a suit by Edward Hill v. Matthew Mason, in the Supreme Court at some former period.
After some evidence tending to show the defendant’s representations, the plaintiff attempted to show their falsity by reading from said case of Hill v. Mason, when His Honor ■excluded the evidence, as not being relevant to the case on •trial, and in this way left the case with the jury on a material point with evidence of what the defendant said, and •without any evidence from which they could know •whether his representations were true or false. No better evidence ■of the finality of the case of Hill v. Mason could be had khan the record itself, and it does not appear that any other was introduced or offered on the question by either party.
There is error. Let this be certified.
Per Curiam. Judgment reversed.