Pike v. White's Administrator ( 1834 )

WOOD, J.

The common Pleas were right in overruling the non suit. The evidence tended to prove the issue. But no writ of error lies to such refusal, if we should have ordered differently— the motion is addressed to the discretion of the court, and if refused, the applicant goes to the jury, not to the court of errors. But in refusing to instruct the jury, that without they were satisfied by proof the work was done, they should not find for the plaintiff, to make the defendant pay for it, the court erred; and for that error we reverse the judgment.