This is a case of assumpsit brought by the appellant Ygnacio Herrera, the plaintiff below, against Antonio José Chaves- and Maria de la Luz Garcia de Chaves, the defendants below, to recover the reasonable 'value of boarding, lodging, clothing, schooling, etc., of certain two minor children, at the instance and request of said Maria, one of the defendants, while she was the widow of the father of said children, and sole and unmarried, she being the mother of said children and being also the wife of said Antonio, the other of said defendants at the time of the commencement of this action, as well as during the progress of the proceedings therein.

The general issue was pleaded to the declaration and the cause brought to trial before a jury.

After the plaintiff had presented all his evidence, and rested, the court below, at the request of the defendants, instructed the jury to find for the defendants on the ground that there was no evidence sufficient to support the plaintiff’s declaration. To this instruction the plaintiff excepted. Two of the jury refused to obey said instruction to find for the defendants, while ten of the jury assented thereto. Whereupon, and before said jury left their seats, the court, in the presence of the jury and against the will of the plaintiff, peremptorily ordered a nonsuit to be entered and the jury discharged, which was accordingly done, together with judgment for the defendants for their costs. To which order and entry of judgment the plaintiff excepted. A bill of exceptions presenting these facts and including all the evidence is before this court as parts of the record.

Upon this statement of the case, several questions are presented by the briefs of the respective counsel for the parties, none of which do we consider it material or necessary to notice except those arising on the plaintiff’s exceptions already stated.

The instruction of the court to the jury to find for the defendants was clearly proper under the circumstances, as there was no evidence deduced on the trial tending to prove either an express or implied obligation or promise on the part of the defendants, or either of them, as the plaintiff had alleged in the declaration.

As to the question whether the court below, under the circumstances, had any authority to order a peremptory non-suit against the will and consent of the plaintiff, we meet with difficulty in arriving at a satisfactory conclusion from the conflicting decisions on the subject by the courts of the various states.

In the state of New York the appellate courts have always held that the courts of original jurisdiction, not only had the power, but that it was their duty, to direct a nonsuit even against the will of the plaintiff, when upon the trial he failed to present any evidence in support of his claim: Pratt v. Hull, 13 John., 134; Allgro v. Duncan, 24 How. (N. Y.) Pr., 210.

Put whatever may be the preponderance of authority among the different states in favor of recognizing and exercising this judicial authority, we are constrained to regard the decision of the U. S. Supreme Court as conclusive, if they cover the case before us. The reason being that an appeal or writ of error lies from the final decrees or judgments of the supreme court of a territory, directly to the IT. S. Supreme Court.

The first case in which the identical question we are now ■considering arose in that court in the case of Elmore v. Grymes, 1 Pet., 469.

That case went to the U. S. Supreme Court from a U. S. Circuit Court, over wliich'Associate Justice Johnson of the supreme coúrt presided as circuit judge. Judge Johnson, as such circuit judge, had peremptorily ordered the plaintiff to be nonsuited against his will because the evidence on the trial was inadequate to maintain the suit.

The case went to the U. S. Supreme Court on this point alone; no evidence was before the supreme court. That ■court, Chief Justice Marshall delivering the opinion, held “ that the court below had no power to order a peremptory nonsuit against the will 'of the plaintiff. That the plaintiff had a right to have his case submitted to a jury.”

Associate Justice Johnson, who had directed the nonsuit in the circuit court, gave an elaborate dissenting opinion with some degree of asperity, in which he reviewed the whole subject. ITis reasoning is certainly strong, and as it would seem, conclusive, yet the supreme court adhered to its decision. They adopted the old English nisi frius practice on this subject,-which was that “the plaintiff is in no case compellable to be nonsuited, and if he insist upon the matter being left to the jury, they must give in their verdict: 2 Tidd’s Practice, 869.

Since the decision of Elmore v. Grymes, sufra, the U. S. Supreme Court have repeatedly referred to and affirmed that decision: 1 Pet., 476; 6 Pet., 598; 23 How., 172; 1 Wal., 359.

The matter may therefore be- considered as settled, so far as that court is concerned, and that the same is conclusive upon us.

We hold, therefore, that the court below erred under the circumstances in ordering a peremptory nonsuit against the will of the plaintiff.

The judgment of the court below is reversed, and a trial de novo granted.

dissenting: I submit to the decision which has just been read, but I am not satisfied that it is correct. The opinion of a majority of the court in Elmore v. Grymes, 1 Pet., 471, upon which this opinion is founded, was announced by the court in very few words, and no attempt is made to sustain it by reason or authority. On the contrary, the dissenting opinion of Judge Johnson in the same case is fortified by the weight of authority both in England and this country, and is supported by reason and legal principle. He shows that it is not the perfection of reason to hold that a court may indirectly put an end to a trial where there is no evidence, by directing a verdict for defendant, but that it may not do the same thing directly by ordering a nonsuit. The power conceded to the court is greater than the power denied it. So far as I am advised, the opinion of Judge Johnson has never been answered. It has happened, not infrequently, in the history of the law, that a doctrine has long obtained, supported by real or supposed authority, which when thoroughly discussed and examined, could not be sustained.

In our opinion, cited in another case pending in this court, it is stated substantially that the doctrine that an award alone was a bar to an ' action, -was long held in England, and till Lord Tenterden exposed its fallacy. And similar instan-. ces might be cited, where judges distinguished for ability, learning and integrity, have upheld principles or practices which subsequent investigation have proved erroneous.

I adopted the rule in this case in the second judicial district, because I was assured by experienced attorneys that it had long been the practice‘ in this territory, and because I believed it to be -right in principle and sometimes necessary, as in this case, to vindicate the authority of the court.

If New Mexico were a state, this question should be examined and decided upon its merits.

As it is, I can only acquiesce in the decision of a majority of this court.