WASHBURN V. ALLEN

393

SECTION 6. NONSUIT.

WASHBURN v. ALLEN.

SUPREME JUDICIAL COURT OF MAINE, 1885.
77 Maine 344.

FOSTER, J.: This action was tried before the presiding justice, without the intervention of a jury. The parties upon both sides had introduced their evidence, and at this stage of the trial the plaintiff claimed to become nonsuit, to which the defendant objected; thereupon the court ruled, as a matter of law, that the plaintiff could not become nonsuit against the defendants' objection.88

Before proceeding to consider the authorities that bear upon this question, it may be remarked that nonsuits may be classed under two divisions. (1) Involuntary; as when ordered by the court against the plaintiff's objection. (2) Voluntary, when allowed by the court on the plaintiff's own motion. Into the one or the other of the two classes the decided cases fall. The case under consideration comes within the last, and brings us to consider the rule of practice applicable in such cases.

fact is taken against the party demurring as true, and no testimony can be considered which impugns its truth. Davis v. Steiner, 14 Pa. St. 275, 53 Am. Dec. 547 (1850); Cocksedge v. Fanshaw, 1 Dougl. 118 (1779); Doe v. Rue, 4 Black f. (Ind.) 263, 29 Am. Dec. 368 (1836); McKowen v. McDonald, 43 Pa. St. 441, 82 Am. Dec. 576 (1862); Plant v. Edwards, 85 Ind. 588 (1882); Lake Shore, &c., R. Co. v. Foster, 104 Ind. 293, 4 N. E. 20, 54 Am. Rep. 319 (1885); Hopkins v. Railroad, 96 Tenn. 409, 34 S. W. 1029, 32 L. R. A. 354 (1895); Des Moines Life Assn. v. Crim, 134 Fed. 348, 67 C. C. A. 330 (1904); Mugge v. Jackson, 50 Fla. 235, 39 So. 157 (1905); Meily v. St. Louis & F. S. R. Co., 215 Mo. 567, 114 S. W. 1013 (1908); Carter v. Prairie Oil & Gas Co., 80 Kans. 792, 104 Pac. 563 (1909). In Virginia and West Virginia an anomalous practice exists by which the evidence of both parties is put in the demurrer, the demurrant admitting all that may reasonably be inferred from the evidence of the adverse party and waiving so much of his evidence merely as is contradicted or impeached thereby. Trout v. Va. & Tenn. R. Co., 23 Gratt. (Va.) 619 (1873); Chesapeake, &c., R. Co. v. Sparrows, 98 Va. 630, 37 S. E. 302 (1900); Bowers v. Bristol Gas. &c. Co., 100 Va. 533, 42 S. E. 296 (1902); Bowman v. Dewing, 50 W. Va. 445, 40 S. E. 576 (1901).

A demurrer to evidence must be in writing. Landt v. McCullough, 218 Ill. 607, 75 N. E. 1069 (1905); Rockwell v. Congress Hotel Co., 237 Ill 98, 86 N. E. 740 (1908); Bridgeport Wooden-ware Mfg. Co. v. Railroads, 103 Tenn. 490, 53 S. W. 739 (1890); Skinner Mfg. Co. v. Wright, 51 Fla. 324, 41 So. 28 (1906); Newport, &c., Co. v. Nicolopoolos, 109 Va. 165, 63 S. E. 443 (1909).

Upon demurrer to evidence, the damages may be assessed by the principal jury conditionally before they are discharged; or they may be assessed by another jury upon a writ of inquiry after the demurrer is determined. Darrose v. Newbolt, Cro. Car. 143 (1629); Feay v. Decamp, 15 Serg. & R. (Pa.) 227 (1826); Young v. Foster, 7 Port. Ala. 420 (1838); Mobile & 0. R. Co. v. McArthur, 43 Miss. 180 (1870); Holmes v. Phoenix Mut. Life Ins. Co., 49 Ind. 356 (1874); Hanover Fire Ins. Co. v. Lewis, 23 Fla. 193, I So. 863 (1887); Galveston, &c., R. Co. v. Templeton, 87 Tex. 42, 26 S. W. 1066 (1894).

The argument of counsel and part of the opinion of the court are

omitted.

The English practice differs somewhat from that of our own courts. At common law, as early practiced in the English courts, upon every continuance or day given over before judgment, the plaintiff was demandable, and upon his nonappearance might have been nonsuit. Bacon's Abr. Nonsuit, D.; Co. Litt. 139b. And no verdict could be returned and given, unless in his presence, or that of his counsel, but the plaintiff was said to be nonsuit. Therefore it was usual for a plaintiff, when he or his counsel perceived that he had not given evidence sufficient to maintain his issue, to withdraw himself and be voluntarily nonsuited. 3 Black. Comm. *376; Murphey v. Donlan, 5 B. & C. 178, 11 Eng. Com. Law 195. And whenever the plaintiff ought to appear in court, he was at liberty to withdraw. Co. Litt. 138, b, 139, a; Robinson v. Lawrence, 7 Exch. 123. The plaintiff had a right to be nonsuited at any state of the proceedings he might prefer, and thereby reserve to himself the power of bringing a fresh action for the same subject-matter; and the right continued to the last moment of the trial, even till after verdict rendered, or, where the case was tried by the court without the intervention of a jury, until the judge had pronounced his judgment. Outhwaite v. Hudson, 7 Exch. 380. Consequently, if he was not satisfied with the damages given by the jury, he might become nonsuit. Bacon's Abr. Nonsuit, D.; Keat v. Barker, 5 Modern 208.

But by statute, 2 Henry IV, ch. 7 (A. D. 1400), it was ordained and established, that if the verdict passed against the plaintiff, he should not be nonsuited, which before that time was otherwise at common law.

Notwithstanding this statute, which was an amendment of the common law, it was held that the plaintiff might be nonsuited after the finding of a special verdict, and the reason of this would seem to be that a special verdict is in the nature of a statement of facts; and also after a demurrer and argument thereon, and a rule for judgment for defendant, though it could not be done at the same term. Bacon's Abr. Nonsuit, D.; Alderly v. Alderly, Cro. Jac. 35. And this statute was afterwards construed as applying only to cases where the jury had passed upon the whole matter. Earl of Oxford v. Waterhouse, Cro. Jac. 575; Com. Dig. Pleader, w. 5. Except in the cases above stated, the plaintiff could always become nonsuit upon any continuance.89

In 1740, the English practice was further regulated by statute of 14 Geo. II, ch. 17, which provided: "That where issue is, or shall be, joined in any action or suit at law in any of his majesty's courts of record, and the plaintiff or plaintiffs, in any such action or suit, hath or have neglected, or shall neglect, to bring issue on to be tried according to the course and practice of the said courts respectively, it shall and may be lawful for the judge or judges of the said courts respectively, at any time after such neglect, upon motion made in open court (due notice thereof having first been given), to give the

Under the modern English practice a plaintiff can not elect to be nonsuited; if he offers no evidence at the trial, the defendant is entitled to a verdict. Fox v. Star Newspaper Co., L. R. (1898) 1 Q. B. 636; affirmed L. R. (1900) App. Cas. 19, and see rules of supreme court, order XXVI, rules 1-4.

WASHBURN V. ALLEN

395

like judgment for the defendant or defendants in every such action or suit, as in the case of nonsuit." 90

It would seem that the practice in England, under the common law, as well as since the more modern statutes, has been perhaps more liberal in favor of allowing nonsuits to plaintiffs as matter of right, than is prescribed in this country. According to the practice. there, as appears by the decisions of their courts, a plaintiff could not be nonsuited on the trial against his assent, but might insist, as matter of right, on the cause going to the jury, and thus taking his chance of a verdict. Dewar v. Purday, 4 Ad. & El. 633.o1

91

Whatever may be practice elsewhere, the courts of Massachusetts and New Hampshire have never adopted the early English practice, but, on the contrary, have declared that, after a cause has been opened to the jury, the plaintiff can not become nonsuit, as a matter of legal right, but the court might allow it, at that stage of the case, in its discretion. In Haskell v. Whitney, 12 Mass. 47, Jackson, J., in pronouncing the opinion of the court says: "The plaintiff, or demandant, may, in various modes, become nonsuit, or discontinue his suit, at his pleasure. At the beginning of every term, at which he is demandable, he may neglect or refuse to appear. If the pleadings are not closed, he may refuse to reply, or to join an issue tendered; or, after issue joined, he may decline to open his cause to the jury. The court also may, upon sufficient cause shown, allow him to discontinue, even when it can not be claimed as a right; as after the cause is opened, and the evidence submitted to the jury."92

We have carefully examined not only the authorities cited, but many others, in support of the extension of the rule to authorize a nonsuit, as matter of right, up to the time of verdict, but we are not satisfied that, as against the decisions of our own courts, the English practice, or the old common law doctrine should prevail. In the cases to which we have referred, our courts have fully recognized, though they have not seen fit to follow, the ancient common law as laid down many years ago in England. Many of the customs of our courts are different from those existing at that time, when no verdict could be returned for or against a plaintiff unless he or his counsel was present in court, and to avoid which, or, if in his favor, and the damages were not satisfactory to him, he might withdraw himself and become nonsuit. Cessante ratione legis, cessat ipsa lex.

"Mewburn v. Langley, 3 T. R. I (1789); Porzelius v. Maddocks, 1 H. Bl. 101 (1789); Burton v. Harrison, 1 East 346 (1801); Barnes' notes 313. "See note 99 to Ringold v. Haven, post p. 403.

92The court also cites Locke v. Wood, 16 Mass. 317 (1819); Means v. Welles, 12 Metc. (Mass.) 356 (1847); Lowell v. Merrimack Mfg. Co., 11 Gray (Mass.) 382 (1858); Shaw v. Boland, 15 Gray (Mass.) 571 (1860); Truro v. Atkins, 122 Mass. 418 (1877) ; Burbank v. Woodward, 124 Mass. 357 (1878); Judge of Probate v. Abbott, 13 N. H. 21 (1843); Wright v. Bartlett, 45 N. H. 289 (1864); Pollard v. Moore, 51 N. H. 188 (1871); Fulford v. Converse, 54 N. H. 543 (1874); Parker v. Burns, 57 N. H. 602 (1876); Farr v. Cate, 58 N. H. 367 (1878); Proprietors v. Davis, 2 Maine 356 (1822); Theobald v. Colby, 35 Maine 179 (1853); Philips v. Echard, Cro. Jac. 35 (1605); Larrabee v. Rideout, 45 Maine 193 (1858).

Hence, not only upon principle, but authority, we may safely found this rule: That the plaintiff, before opening his case to jury, or to the court, when tried before the court without the intervention of the jury, may become nonsuit as a matter of right; after the case is opened, and before verdict, leave to become nonsuit is within the discretion of the court; after verdict there can be no nonsuit.93 ***

In this case both parties had introduced their evidence. The plaintiff thereupon stated that he voluntarily became nonsuit. The defendants objected. The court then ruled, as matter of law, that the plaintiff could not become nonsuit against the defendant's objection, and ordered judgment for defendants.

This, we think, was error; it was, in effect, expressly denying that the trial court had the power, in the exercise of its discretion, to grant the nonsuit asked for by the plaintiff, and which, as we have stated, could have been done, in the discretion of the court, at that stage of the case.

Exceptions sustained.

EASTON BANK v. CORYELL.

SUPREME COURT OF PENNSYLVANIA, 1844.

9 Watts and S. (Pa.) 153.

Error to the common pleas of Bucks county. This was an action of assumpsit on a promissory note brought by the Easton Bank against Coryell and Murray. After the charge of the court, the jury retired to deliberate upon their verdict, and after the lapse of some time came into court. After they had entered the jury box and nine of them had been called, and before the clerk had finished calling them, the plaintiff asked to suffer a nonsuit. The court decided that it was too late, and refused to allow it, and plaintiff excepted. The refusal was one of the assignments of error.

93

3 Accord: Benoist v. Murrin, 48 Mo. 48 (1871); United States v. Humason, 8 Fed. 71 (1881); Bettis v. Schrieber, 31 Minn. 329, 17 N. W. 863 (1883); Johnson v. Bailey, 59 Fed. 670 (1894); Derick v. Taylor, 171 Mass. 444 (1898); Carpenter v. N. Y., N. H. & H. R. Co., 184 Mass. 98, 68 N. E. 28 (1903). In other jurisdictions the plaintiff may suffer a voluntary nonsuit at any time before the case is submitted to the jury. Amos v. Sinnott, 5 Ill. 440 (1843); Adams v. Shepard, 24 Ill. 464 (1860); McClelland v. Louisville, N. A. &c. R. Co., 94 Ind. 276 (1883); National Broadway Bank v. Lesley, 31 Fla. 56 (1893); Morrisey v. Chicago & N. W. R. Co., 80 Iowa 314, 45 N. W. 545 (1890); Toulouse v. Pare, 103 Cal. 251, 37 Pac. 146 (1894); Bauman v. Whiteley, 57 N. J. L. 487, 31 Atl. 982 (1895); Osborne v. Davies, 60 Kans. 695, 57 Pac. 941 (1899); Greenfield v. Carey, 70 N. J. L. 613, 57 Atl. 269 (1904); McPherson v. Seattle Elec. Co., 53 Wash. 358, 101 Pac. 1084 (1909); Snyder v. Collier, 85 Nebr. 552, 123 N. W. 1023 (1909); Knight v. Ill. Cent. R. Co., 180 Fed. 368 (1910); Strottman v. R. Co., 228 Mo. 154, 128 S. W. 187 (1910); Van Wagemen v. Chladek, 27 S. Dak. 436, 131 N. W. 507 (1911). The New York Code of Civil Procedure provides, § 1182: "It is not necessary, in an action in a court of record to call the plaintiff, when the jurors are about to deliver their verdict; and the plaintiff, in such an action, can not submit to a nonsuit, after the cause has been committed to the jury, to consider the verdict."

MERCHANTS' BANK OF CANADA V. SCHULENBERG

94

397

PER CURIAM. There is no apparent error in the charge; but the plaintiff was erroneously compelled to submit to a verdict. It was ruled in McLughan v. Bovard, for reasons not necessary to be repeated, that a plaintiff is entitled to become nonsuit at any time before the jury have declared their readiness to give their verdict in answer to the prothonotary's formal inquiry; but in this instance they were not ready, for they had not all been called and counted, in compliance with the ceremony that precedes the question of readiness. It is better to hold fast to the established criterion, whatever it may be, than introduce uncertainty by departing from it.95 Judgment reversed.

MERCHANTS' BANK OF CANADA v. ALBERT R.
SCHULENBERG.

SUPREME COURT OF MICHIGAN, 1884.

54 Mich. 49.

SHERWOOD, J.: This case has once before been in this court (48 Mich. 102), but the questions then raised have no bearing upon the points made in the present record. The action is assumpsit upon a Canadian judgment rendered in the Court of Queen's Bench in the province of Ontario. The plea was the general issue, with notice of set-off and other special matters in bar of the suit. Under the setoff defendant claimed to be entitled to a judgment. There was no contest as to the amount of the plaintiff's claim upon the trial. The record of the Ontario judgment was introduced in evidence without objection, and the plaintiff's counsel rested his case.

The defendant then examined two witnesses upon his part, and, when nearly ready to close the defense, counsel for plaintiff announced to the court that he was taken by surprise by the defendant's testimony; was not then prepared to meet it; and asked leave of the court to submit to a nonsuit, with the right to move to set the same aside. This application of plaintiff's counsel was objected to by the

4 Watts (Pa.) 308 (1835). See Pa. Act of April 16, 1903, P. L. 216, § I. "Accord: Price v. Parker, 1 Salk. 178 (1696); Keat v. Barker, 5 Mod. 208 (1696); Usher v. Sibley, 2 Brev. (S. Car.) 32 (1806); Chedoteau v. Dominquez, 7 Mart. (O. S.) (La.) 490 (1820); Wooster v. Burr, 2 Wend. (N. Y.) 295 (1829); McCredy v. Fey, 7 Watts (Pa.) 496 (1838); Outhwaite v. Hudson, 7 Exch. 380 (1852); Stevens v. Esling, 2 F. & F. 136 (1860); People's Bank v. Stewart, 93 N. Car. 402 (1885); Helwig v. Hosmer, 73 Mich. 258, 41 N. W. 268 (1889); Piedmont Mfg. Co., v. Buxton, 105 N. Car. 74, 11 S. E. 264 (1890); Hoodless v. Winter, 80 Tex. 638, 16 S. W. 427 (1891); Jackson v. Meritt, 21 D. C. 276 (1892); Felts v. Del. L. & W. R. Co., 170 Pa. St. 432, 33 Atl. 97 (1895); Crumley v. Lutz, 180 Pa. 476, 36 Atl. 929 (1897). See Sharpe v. Sowers, 152 N. Car. 379 (1910). "The ancient practice was for the officer of the court to ask the jury, after they had considered of their verdict, if they were agreed in their verdict. If they answered in the affirmative, the officer then called the plaintiff by name to hear the verdict; and if he appeared the verdict was pronounced. If he did not appear to prosecute his suit he was nonsuited." Per Abbott, C. J., in Murphy v. Donlon, 5 B. & C. 178 (1826).