The opinion of the Court was delivered by

By the 7th section of the Act of 26th July 1842, establishing the Nisi Prius Court, the provisions of the 7th section (among others) of the Act of 11th March 1836 are extended to original actions brought in the Supreme Court in the city and county of Philadelphia. The 7th section of the Act of 11th March 1836 enacts that whenever the defendant upon the trial of a cause in the District Court shall offer no evidence, it shall be lawful for the judge presiding at the trial to order a judgment of nonsuit to be entered, if in his opinion the plaintiff shall have given no such evidence as is in law sufficient to maintain the action; with leave, nevertheless, to move the court in banc to set aside such judgment of nonsuit. And in case the said court in banc shall refuse to set aside the nonsuit, the plaintiff may remove the record by a writ of error into the Supreme Court for revision and revisal, in like manner and with like effect as he might remove a judgment rendered against him upon a demurrer to evidence.

The case, therefore, seems to come up to this court by certificate from the Nisi Prius judge in the same manner as it does by writ of error from the District Court; and there, although the first part of the clause requires the judge on motion for nonsuit to grant it if the plaintiff has given insufficient evidence, yet by the latter which controls it, the motion for nonsuit is in efféct a demurrer to evidence, with the exception noticed in Smyth v. Craig, (3 Watts & Serg. 18), that the judge is not at liberty to give judgment for the plaintiff, should he think the case made out, but should refuse the nonsuit and put the case to the jury. Considered, therefore, as a demurrer to evidence, the rule is that the plaintiff is entitled to the benefit of every inference of fact which the jury might draw from the evidence, the defendant being considered as admitting every fact which the evidence tends to prove. The law arises on the facts, not on the evidence. In the present case there was some evidence, though slight, on the part of the plaintiff, on which he had a right to an inference by the jury, if they chose to make it, and therefore the case ought, we think, to have gone to the jury. It is proper to say that this point was not made in the court below, on the motion for a nonsuit.

Judgment reversed, and venire facias de novo awarded.