Were of opinion, that the demandant, by voluntarily suffering a nonsuit, was out of court, and had precluded herself from any claim on the court.

It’s every day’s practice to set aside a nonsuit improperly ordered by the court, if a judge at the circuit, has, by illegal admission or rejection of evidence, driven the -plaintiff to suffer a nonsuit. I am not satisfied *513but that the nonsuit should be set aside, and the plaintiff reinstated; and incline to the opinion, that the plaintiff be heard on the illegality of the testimony admitted at the circuit.

Rule refused.1

*514CASES ADJUDGED IN THE Supreme Court of Judicature OF THE STATE OF NEW JERSEY. SEPTEMBER TERM, 1812.