7 Watts 496 | Pa. | 1838
The opinion of the Court was delivered by
That according to the rule of (he common law no verdict could be given unless the plaintiff, by himself, attorney or counsel, appeared in court, cannot, I apprehend, be questioned. 3 Bl. Com. 376. The reason of this rule originally seems to have been that, the plaintiff being liable to be amerced in case the jury delivered a verdict against him as a punishment for his false claim, it was therefore necessary that he should either be present in person or by his attorney or counsel in order to answer to such amercement, otherwise no verdict could be given ; and in the event of his nonappearance he was nonsuit, non sequitur clamorem suum. 3 Bl. Com. 376. Though the original reason for this rule may have long since
Previously to the passage of this act the practice undoubtedly was, without exception, to call the plaintiff in every case, when the jury came into court to deliver their verdict; and upon his failing to answer, either by himself, his attorney or counsel, the court directed a nonsuit to be entered, and discharged the jury without their giving a verdict, which terminated that action ; though the plaintiff might thereafter bring another of the like kind for the same cause. Even in replevin, where it is said both parties are actors, I am inclined to think that the plaintiff could not at common law have been compelled to receive the verdict; and if he refused to answer when called for that purpose, no verdict could be given. It is true that courts have refused in replevin to permit judgment, as in case of a nonsuit, to be entered against the plaintiff, for not going to trial according to the practice of the court, upon the ground that both parties are actors therein, and therefore the defendant might have carried down the record or brought the cause to trial by proviso. Jones v. Concanon, 3 T. R. 660; Egleton v. Smart, 1 Bl. Rep. 375; Barrett v. Forrester, 1 Johns. Cas. 247. This, however, was only deciding that the plaintiff should not have a judgment of nonsuit entered against him at the instance of the defendant in the replevin ; and not that the plaintiff had no right to take a nonsuit voluntarily. Though it may be, but I do not say it is so, that under the statute of
The case, however, of Lawrence v. Burns, 2 Browne’s Rep. 60, and the opinion of the late Mr Justice Duncan in Lewis v. Culbertson, 11 Serg. & Rawle 60, have been cited and relied on by the counsel for the defendant to sustain the decision of the court below. As to the case in Browne, it would be sufficient perhaps to say that it is not this case; for there the plaintiff, being called when the jury came into court to deliver their verdict, actually answered, and they gave a verdict generally for the defendant, besides reporting a sum of money to be due from the plaintiff to him ; on which it would seem they intended to allow interest, but omitted to make a calculation of the amount; so that the plaintiff having answered and taken the verdict could with no propriety claim to be nonsuited, after having ascertained that the verdict was against him. He made his election, and it was no more than right that he should be bound by it. Then as to the case of Lewis v. Culbertson, the principle decided there has no bearing whatever upon the question here. The opinion quoted, of Mr Justice Duncan, though entitled to very great respect, yet not being called for by the decision of the case must be regarded merely as his own individual opinion. His idea that the plea of payment, with notice of set off, would, under our defalcation act of 1705, be sufficient to preclude the plaintiff afterwards from taking a nonsuit, may be considered as founded in a great measure upon the notion of Mr Justice Heath that the plea of tender was sufficient to prevent it; for he adopts this opinion as sound law, and says, “ on the plea of a tender amply sufficient to cover the debt proved on the trial, the plaintiff cannot be nonsuited, otherwise he might take the money out of court and commence a fresh action.” And then concludes thus : “ the rule as to nonsuits is this, that the plaintiff may in general cases suffer a nonsuit, unless there be something on the record inconsistent with this judgment; something on the record to prevent the plaintiff from abandoning his suit,” without making any distinction as to that something, whether it has been the act of the plaintiff or the defendant that has placed it on the record. If lie had confined it to the act of tlfe plaintiff only, he might perhaps have been correct; as in the cases referred to above, where the plaintiff, after taking a judgment by default against one of two or more defendants, was not permitted afterwards to take a nonsuit as to the others. But in no case, I apprehend, is it competent for the defen
Judgment reversed.