The non-ap

pearance of the plaintiff entitles

defendant to a nonsuit*.

A nonsuit may be entered though some issues are found for the

I. WHERE A NONSUIT WILL OR WILL NOT BE AL

LOWED.

ANDERSON v. SHAW, M. T. 1825. C. P. 3 Bing. 290; S. C. 2 C. & P. 85.

THE defendant pleaded a tender, and paid money into Court, which the plaintiff took out, and the defendant took down the record by proviso, and the plaintiff did not appear.

The Court held, that the defendant was not entitled to a verdict, but the plaintiff must be nonsuited.

SHEPHERD V. BISHOP OF CHESTER, H. T. 1830. C. P. 4 M. &
P. 130; S. C. 6 Bing. 437.

A VERDICT had been entered for the defendant on two issues, and for the plaintiff on two others, but which, it was admitted, could not be supported, if the Court should be of opinion that a variance was fatal; and the Judge reserved liberty to enter a nonsuit accorddefendant, if so ingly.

reserved.

The Court held, that the Court might direct a nonsuit to be entered, notwithstanding the issues found for the defendant.

There cannot be a verdict as to one defendant, and nonsuit as to another.

But, one of several defendants suffering judgment by default does

not preclude a

nonsuit.

II. RELATIVE TO THE PARTY ENTITLED TO DEMAND IT.
REVELL v. BROWNE, T. T. 1828. C. P. 2 M. & P. 18.
THE plaintiff, by deed, assigned all his property in trust for the
payment of his debts. The defendants, as the agents or servants,
and by the command of the trustees, forcibly entered and took pos-
session of a chapel (part of the estate) in which the plaintiff was
occasionally in the habit of preaching, and the key of which he held
at the time, not, however, as a symbol of possession, but merely
to enable him to preach there. In trespass for the breaking and
entering-

The Court held, in an action against several joint defendants, if one of them have a verdict, the plaintiff cannot be nonsuited as to the others.

MURPHY v. DONLAN, H. T. 1826. K. B. 5 B. & C. 178.

ONE of the defendants pleaded the general issue; the other suffered judgment by default. On the trial, the plaintiff's counsel, finding that he could not establish his case, claimed a right to be nonsuited. This was opposed by the defendant's counsel, on the ground that one of the defendants, having suffered judgment by default, there must now be a verdict one way or the other as to the defendant who had pleaded. The plaintiff, however, was allowed to be nonsuited; and, on a motion by the defendant to set aside the nonsuit, and enter a verdict in his favour

* A sheriff, or other judge presiding at the trial of an issue under a writ of trial, pursuant to 3 & 4 Will. 4, c. 42, s. 17, has the same power to nonsuit as a Judge at Nisi Prius. (Watson v. Abbott, 4 Tyr. 64). Submitting to a nonsuit in deference to the opinion of the Judge at the trial, which opinion is incorrect, does not estop the plaintiff from moving to set aside such nonsuit. (Alexander v. Barker, M. T. 1831, Ex., 2 C. & J. 133; S. C. 2 Tyr. 140). A plaintiff cannot be nonsuited but by his own consent. (Dewar v. Purday, 4 Nev. & M. 633; 3 Ad. & E. 166).

The Court said, that notwithstanding former authorities, and the practice which had followed them, it was clear, that, in principle, there could be no distinction between the present and the ordinary case, in which a plaintiff might elect to be nonsuited.

III. APPLICATION FOR, AND OF LEAVE RESERVED TO
MOVE FOR*.

IV. OF THE COSTS†.

V. OF SETTING ASIDE.

SIMPSON v. CLAYTON, T. T. 1835. C. P. 2 Bing. N. S. 467; 2 Scott, 291.

AFTER the judge had commenced summing up, the plaintiff proposed to be nonsuited. The Court held, that the new expression of the Judge's opinion, from time to time, upon the evidence, was no sufficient ground for setting aside the nonsuit.

VI. NEW TRIAL AFTER.

DEWAR v. PURDY, E. T. 1835. K. B. 4 N. & M. 633; S. C. 3 Ad. & E. 166.

UPON the closing of the plaintiff's case, the defendant applied for a nonsuit. The learned Judge refused to stop the cause, but gave leave to move for it; and, the trial having proceeded, the jury not agreeing as to their verdict, he directed, in the absence of the plaintiff's counsel, the plaintiff to be nonsuited.

The Court held, that the plaintiff's consent to the future decision of the Court, as to the nonsuit, must be taken to have been given on condition that there should be a verdict returned; which not having been done, he was in the same situation as if he had given no consent, and that without it he could not be nonsuited and a new trial granted.

* If the counsel for a defendant has addressed the jury and examined witnesses, he has no right then to address the Judge for a nonsuit. (Roberts v. Croft, H. T., 1836, N. P., 7 C. & P. 376). So, the Court will not entertain an application for a nonsuit upon an objection taken at the trial, but not reserved by the Judge. Mathews v. Smith, T. T. 1828, Ex., 2 Y. & J. 426). And a party can only move to enter a nonsuit where leave has been given by the Judge at the trial. (Ricketts v. Burman, H. T. 1836, B. C., 4 D. P. C. 578).

+ Where the plaintiff had been nonsuited at the trial, and a rule nisi obtained to set it aside:-Held, that, by the death of the defendant after the rule obtained, the suit abated, the 17 Car. 2, c. 8, not applying to cases of nonsuit. (Farraine v. Hill, E. T. 1830, C. P., 4 M. & P. 413).

Where a plaintiff, of his own accord, elects to be nonsuited, he cannot afterwards move to set aside that nonsuit. (Barnes v. Whiteman, M. T. 1840, B. C., 9 D. P. C. 181). So, where a plaintiff was nonsuited through the neglect of the attorney's clerk to attend in Court, the Court refused to set aside the nonsuit, except upon the terms of the plaintiff's attorney paying the costs occasioned by the defendant's attending to try. (White v. Sandell, E. T. 1835, Ex., 3 D. P. C. 798).

No ground for setting aside nonsuit that plaintiff applied for it after Judge began summing upt.

If plaintiff nonsuited without

consent, a new trial will be

granted.

Nonsuit, Judgment as in case of.

I. RELATIVE TO, WHEN IT WILL OR WILL NOT BE ALLOWED.

(a) IN GENERAL, p. 33.

(b) OF THE NEW RULES, p. 33.

(c) THE CAUSE MUST BE AT ISSUE, AND OF THE ENTRY of the issue, p. 34.

(d) WHERE SEVERAL DEFENDANTS, p. 35.

(e) WHERE A Demurrer, p. 35.

(f) WHERE A NEW TRIAL, RULE FOR ABANDONED, p. 35.

(g) WHERE A REeference, p. 35.

(h) WHERE A CAUSE MADE A REMANET, p. 36.

(i) WHERE DEBT AND COSTS PAID, BEFORE MOTION FOR, p. . 36.

(j) IN EJECTMENT, p. 36.

(k) On writ of right, p. 36.

(1) WHERE CAUSE tried befORE THE SHERIFF, p.

II. RELATIVE TO, WHEN TO BE MOVED FOR.

(a) IN TOWN Causes.

1. In general, p. 37.

2. Before notice of Trial, p. 37.
3. After notice of Trial, p. 38.

4. In Ejectment, p. 39.

(6) IN COUNTY CAUSES, p. 39.

(c) BEFORE THE SHERIFF, p. 40.

36.

III. RELATIVE TO THE MOTION AND RULE FOR, AND HEREIN OF PLAINTIFF'S EXCUSE FOR

NOT PROCEEDING.

(a) OF THE MOTION AND RULE, p. 40.

(6) EXCUSE FOR NOT PROCEEDING.

1. Illness of the Judge, p. 41.

2. Illness of the Witness, p. 41.

3. Poverty, p. 41.

4. Insolvency, p. 42.

5. Special Jury, Rule for, p. 42.

6. Cause not at Issue, or Action brought without plaintiff's Consent, or where Debt and Costs previously paid, p. 43.

(c) TERM'S NOTICE, p. 43.

IV. RELATIVE TO THE AFFIDAVIT, p. 43.

V. RELATIVE TO DISCHARGING THE RULE FOR, AND OF THE UNDERTAKING TO TRY, p. 43.

VI. RELATIVE TO MAKING THE RULE ABSOLUTE, p. 45.

VII. RELATIVE TO THE EFFECT OF THE RULE, p. 45.

VIII. RELATIVE TO THE COSTS, p. 45.

IX. RELATIVE TO SETTING ASIDE, p. 47.

I. RELATIVE TO, WHEN IT WILL OR WILL NOT BE
ALLOWED.

(a) IN GENERAL.

MONCK v. BONHAM, H. T. 1834. Ex. 2 C. & M. 430; S. C. 2 D. P. C. 336.

ON motion for judgment as in case of a nonsuit, where a sufficient reason is given why the plaintiff should not be forced on to trial, as that the money has been paid and the action abandoned, the Court will not give judgment as in case of nonsuit, but leave the defendant to take the cause down by proviso.

Judgment will not be granted where a good reason assign

ed for not trying the cause*.

(b) OF THE NEW RULES.

EVANS v. BERNARD, H. T. 1838. Ex. 6 D. P. C. 367; S. C.

3 M. & W. 276.

ON motion for judgment as in case of nonsuit

The new Rules

The Court held, that the new Rules make no difference as to mov- make no differ

ing for judgment as in case of nonsuit.

But may be obtained though issue was joined seven years preceding; (Cromer v. Brown, 1834, B. C., 4 D. P. C. 288); or eight years. (Curtis v. Talram, 1824, 4 D. P. C. 600).

If a plaintiff does not proceed to trial pursuant to notice at the defendant's request, he is not entitled to judgment as in case of nonsuit. (Doe d. Steppins v. Lord, M. T., 1833, B. C., 2 D. P. C. 419). So, judgment refused after an agreement to pay by instalments, although one still due. (Anon., E. T. 1830, Ex., 1 Tyrw. 378; S. P. Watkins v. Giles, T. T., 1835, B. C., 4 D. P. C. 14). And where the plaintiff has been nonsuited, and the nonsuit afterwards set aside, the defendant cannot move for judgment as in case &c., but must take down the cause by proviso. (Ashley v. Flaxman, T. T. 1834, Ex., 2 D. P. C. 697). So, where cause once tried and new trial granted. 5 D. P. C. 393).

ence.

Cannot be ob

(c) THE CAUSE MUST BE AT ISSUE, AND OF THE ENTRY OF THE

ISSUE.

BROOK v. LLOYD, E. T. 1836. Ex. 1 M. & W. 552; S. C. 1 T. & G. 924.

ON motion for judgment as in case of a nonsuit, it appeared that tained until si- the plaintiff's pleadings concluded to the country.

militer added* ;

in fact, the cause must be completely at issue.

The issue need not be enter

edt.

And, before
Reg. Gen. H.
T. 4 Will. 4,
in the Exche-
quer, defendant
might move
without rule to
enter the issue+.

The Court held, although he may now add the similiter without rule to rejoin, he is not bound to do so; but if he does not, the defendant is not entitled to judgment as in case of nonsuit.

RICHARDS v. MIDDLETON, H. T. 1840. C. P. 1 M. & G. 53. THE plaintiff had withdrawn the record and amended the replication, to which the defendant had rejoined, but no surrejoinder had been delivered.

The Court held, that, the cause not having been at issue, there could be no judgment as in case of nonsuit.

WILLIAMS v. EDWARDS, M. T. 1834. Ex. 1 C., M. & R. 583;
S. C. 3 D. P. C. 183; S. C. 5 Tyrw. 177.

ON motion for judgment as in case of nonsuit—

The Court said, it was no longer necessary to enter the issue.

COALTSWORTH v. MARTIN, M. T. 1831. Ex. 2 C. & J. 123; S. C. 2 Tyrw. 169.

On a rule to shew cause for judgment as in case of a nonsuit, it was contended, that the motion was premature, because the plaintiff had not been ruled to enter the issue.

Bayley, B.-In this Court there is no rule to enter the issue, but before the defendant can move for judgment as in case of a nonsuit, he must give four days' notice of the motion.

* If the similiter be omitted in any one of the issues, though added in the others, the defendant cannot move for judgment as in case of a nonsuit; (Wright v. Oldfield, 1840, B. C., 8 D. P. C. 899); because no issue is joined until similiter added. (Gilmore v. Melton, E. T. 1834, Ex., 2 D. P. C. 632). So, for want of a rejoinder. (Brown v. Kennedy, E. T. 1834, Ex., Id. 639; S. P. Seabrook v. Cave, T. T. 1834, Ex., Id. 691). A similiter intitled in a wrong Court is a nullity; and therefore, in such case, there can be no issue joined to warrant a motion for judgment as in case of a nonsuit. (Ray V. Good, M. T. 1836, Ex., 5 D. P. C. 295). But it is not necessary that the issue should be made up and delivered, in order to entitle the defendant to move for judgment as in case of nonsuit. Where the defendant had refused to accept the notice of trial:-Held, that he could not resort to it in support of his motion for judgment as in case of nonsuit, although the plaintiff afterwards refused to proceed with a reference, agreed to between the parties. (Clarke v. Goldsmid, H. T. 1839, C. P., 5 Bing. N. S. 120).

+ The defendant, unnecessarily ruling the plaintiff to enter the issue, does not preclude him from moving for judgment as in case of nonsuit. (Sarjeant v. Jones, M. T. 1833, B. C., 2 D. P. C. 420).

The Reg. Gen. 70, H. T. 2 Will. 4, directs, that no entry of the issue shall be deemed necessary to entitle a defendant to move for judgment as in case of a nonsuit, or to take the cause down to trial by proviso.