(A) Nature of Nonsuit and Retraxit. thrown down and his arm broken, he runs to his brother's house presently, which was hard by, C, his brother, taking the alarm, came out with his sword drawn and made towards A, who retreated ten or twelve yards, C pursued him, A drew his sword and made a pass at C and killed him; A being indicted at Newgate sessions for murder, the court directed the jury upon the trial to find this manslaughter, not murder; because upon a sudden falling-out; not se defendendo, partly because A made the first breach of the peace, by striking B, and partly because, unless he had fled as far as might be, it could not, by way of interpretation, be said to be in his own defence; and it appeared plainly upon the evidence, that he might have retreated out of danger; and his stepping back was rather to have an opportunity to draw his sword, and with more advantage to come upon C than to avoid him. And accordingly at last it was found manslaughter, 1671, at Newgate. Hal. Hist. P. C. 483. NONSUIT. See Tidd's Practice, 917, et seq. (8th ed.)|| (A) of the Nature thereof, and how it differs from a Retraxit. (B) Who may be Nonsuit. (C) In what Actions there may be a Nonsuit. (D) At what Time a Nonsuit may be. (E) How far the Nonsuit of one shall be the Nonsuit of another. (F) How far a Nonsuit for Part of the Thing in Demand shall be a Nonsuit for the Whole. (G) of the Effect of a Nonsuit: And herein of its being a peremptory Bar. B (H) Of setting aside a Nonsuit.g (A) Of the Nature thereof, and how it differs from a Retraxit. WHERE a plaintiff is demanded and doth not appear, he is said to be nonsuit. And this usually happens, where, upon the trial, and when the jury are ready to give their verdict, the plaintiff discovers some error or defect in the proceedings, or is unable to prove a material point, for want of necessary witness, &c., and thereupon being demanded, (as he must be) his default is recorded by the secondary. And the entry (a) is in misericordia quia non prosecutus est breve suum; upon which the defendant recovers his costs against him. But this arising from some supposed neglect or oversight, the plaintiff, except in some particular cases, is not (b) barred from commencing a new action. Co. Lit. 139 a; 2 Lil. Reg. 230. (a) For the form of the entry, vide Cro. Ja. 213; 2 Leon. 177; 2 Salk. 456, pl. 6. (b) That where a plaintiff is nonsuit, if he will again proceed in the same cause, he must put in a new declaration; for by his being nonsuit, (A) Nature of Nonsuit and Retraxit. it shall be intended that he had no such cause of suit as he declared in, and so that declaration is void, and he hath no day in court. 1 Lil. Reg. 231.—But a nonsuit by mistake may be set aside, and a distringas de novo awarded, for which vide Cro. Car. 203; Cro. Ja. 669; Godb. 328; Raym. 38, 73; 2 Salk. 455.-A motion to set aside a nonsuit occasioned by the judge's mistaking the law. Ca. Law and Eq. 315.Nonsuit discharged, being entered on nisi prius without habeas corpus. Sid. 164.—————* A plaintiff sometimes submits to be nonsuited where the opinion of the judge is against him, the judge giving him leave to move the court to set the nonsuit aside, without costs.If the judge does not give such leave, but directs a nonsuit, the plaintiff, if he conceives the judge mistaken in the law, may move to set the nonsuit aside; and if the court is of opinion the judge was mistaken, will set same aside, and generally without costs. In some particular cases, however, there may be reasons sufficient to induce the court to refuse to set aside the nonsuit, unless the plaintiff will pay costs. And if an objection is taken by defendant at the trial, and the judge overrules it without reserving the point, and the court are afterwards of opinion that the objection was a good ground of nonsuit, they will only grant a new trial, and will not permit a nonsuit to be entered. Minchin v. Clement, 1 Barn. & A. 253.||—If there are several defendants, and all found guilty, plaintiff may enter a nolle prosequi against any one; therefore, if in trover against a defendant executor, and other defendants not executors, there is a verdict against these, and the executors found not guilty, judgment shall not be arrested, for plaintiff may enter nolle prosequi as to him. Dale v. Eyre, T. 24 & 25 Geo. 2, 1 Wils. 306. The court cannot compel a plaintiff to submit to a nonsuit. They may advise it, and direct him to be called; but if he refuse to suffer a nonsuit, the court can no otherwise protect and enforce their opinion but by awarding a new trial, if the jury find against their direction. Consequently a refusal by the court to direct a nonsuit is no ground for a bill of exceptions. 1 Wash. 87, Ross v. Gill; Ibid. 138, Thornton v. Jett; 2 Bin. 234, Girard v. Gettig; Ibid. 248, Widdifield v. Widdifield.} A retraxit is, when the plaintiff is present in court (as regularly he is ever by intendment of law, till a day be given over, unless it be when a verdict is given, and then he is but demandable ;) and this is either privative, when the entry is quòd solemnitèr exactus non venit, sed a sectá sua in contemptum curiæ se retraxit, &c., or positive, when the entry is quòd fatetur se, seu cognoscit se ulterius nolli prosequi, &c. It is called a retraxit, because that is the effectual word used in the entry, and is (a) a bar to all actions of the like or inferior nature. Co. Lit. 139 a. When the plaintiff voluntarily goes into court and enters on the record that he is nonsuit, it is not a nonsuit but a retraxit. Worke v. Byers, 3 Hawks, 228. (a) 8 Co. 58, 52, S. P.; laid down as a rule, 4 Mod. 87, S. P. A retraxit is always of the part of the plaintiff or demandant, and cannot be, unless the plaintiff or demandant be in court in proper person.(b) 9 Co. 58, Beecher's case; Cro. Jac. 211, S. C.; Co. Lit. 138 b, S. P. (b) Sed qu. If plaintiff's counsel, with consent of the attorney, may not consent to a retraxit, though the plaintiff is not present in court? A juror is thus frequently withdrawn, when those concerned for the plaintiff clearly see it is for his benefit. It is held, that a retraxit cannot be entered (c) before the plaintiff hath declared, and if entered before, it hath but the effect of nonsuit. Dals. 78; 3 Leon. 19. (c) Whether a retraxit may be entered after a general verdict. Cro. Eliz. 465, dubitatur. Debt was brought upon a bond against A, wherein A and B were jointly and severally bound, and after plea pleaded the plaintiff entered a retraxit, and in an action after brought against B upon the same bond, whether this should be a bar between (d) Dennis and Paine, Cro. Ja. 551, dubitatur et adjornatur. It was said, that a retraxit was in nature of a release, and a release to one joint obligor discharged the other; but on the other side it was said to be a bar only by way of estoppel between the parties, whereof no other should take advantage. (d) Jon. 451, S. C., and judgment given for the plaintiff, because of a defect in the plea. March, 95, S. C. dubitatur, but varies in the stating it; for by this report, debt 312. (A) Nature of Nonsuit and Retraxit. was brought both against A and B, and the plaintiff entered a retraxit against A; and whether this was a discharge of B, is made the question. Vide Cro. Eliz. 762. * None but the defendant can demand the plaintiff. If neither plaintiff nor defendant appear after cause called, and jury sworn, the only way is to discharge the jury. Arnold v. Johnston, Str. 267; Smith v. Whistler, Ca. temp. Hard. 305, S. P. If a cause is tried by proviso, there must be a rule given in the office, fiat nisi prius per proviso si querens fecerit defaltam; and if there is not, and plaintiff is nonsuited, the nonsuit shall be set aside. Dodson v. Taylor, Str. 1055; [Proude v. Willimote, 1 Barnard. B. R. 18 acc. But it is sufficient if the defendant obtain this rule any time before the trial. King v. Pippet, 1 Term R. 695.] If it appears on the record, that no issue is joined, the jury must be dismissed. Heath v. Walker, Str. 1117. By stat. 14 Geo. 2, c. 17, if plaintiff neglects to bring the issue to trial according to the course of the court, the court, on motion, on notice, shall give judgment as in case of a nonsuit, unless they allow farther time, and defendant shall have costs as in case of a nonsuit. But if in action against two on a joint promise, there is judgment against one by default; and on plaintiff's neglecting to bring issue joined by the other on to trial, rule is obtained for judgment as in case of a nonsuit, yet costs cannot be taxed; for plaintiff could not have been nonsuited on a trial. Weller v. Goyton, 1 Burr. 358. A nonsuit at nisi prius must be recorded by the judge of nisi prius, and cannot afterwards be recorded in bank. Gardner v. Davis, 1 Wils. 301. Îf defendant has obtained a rule for costs for not proceeding to trial, he cannot afterwards move for judgment as in case of nonsuit. Barnes, 131, 314, 316. [Yet, where the plaintiff does not countermand notice of trial, but withdraws the record after the cause is called on, the court will make it a condition for discharging a rule for judgment as in case of a nonsuit, (on a peremptory undertaking to try,) that he shall pay the defendant the costs incurred by omitting to try. Jordaine v. Sharpe, 2 H. Bl. 280;] ||1 East, 346.|| Non pros. for want of declaration, demanded in the country, shall be set aside. Barnes, 311. If a judge of assize directs nonsuit erroneously, there is no remedy. Barnes, 311. [It is now settled, that such nonsuit may be set aside. Lady Windsor's case, 4 Burr. 1984.] If plaintiff dies after nonsuit, and before day in bank, it is not helped by the statute, but is error. Barnes, 312. Rule to declare in C. B., must be in the office where plaintiff's attorney practises. Barnes, On motion for judgment, as in case of a nonsuit, there is a rule for the plaintiff to enter issue; if he does not, defendant may have non pros. ; if he enters it the roll must be produced, and defendant may move for a nonsuit; if the court admit cause, why the nonsuit should not, &c., they appoint day for trial; on such motion, there must be an affidavit that the cause is not tried. Barnes, 313, 316. Sickness of plaintiffmarriage of feme plaintiff—that the bankrupt did not attend assignees, plaintiffs—that material witnesses were ill-or that the record was offered to be entered, though a little out of time; Barnes, 313, 514, 315, 316, 464; [the insolvency of the defendant since the action brought, Bailey v. Wilkinson, Dougl. 671; {1 Cain. 116, Lackey v. M‘Donald; 1 Johns. Rep. 141, Steinbach v. Hallett; Ibid. 143, Hart v. Storey;} or, that the cause was carried down and made a remanet, Mewburn v. Langley, 3 Term R. 1, are sufficient causes to prevent judgment as in case of a nonsuit.] {So is the sudden indisposition of counsel and attorney; 1 Cain. 152, Jackson v. Brown; or the want of papers which the plaintiff had good reason to expect; 2 Cain, 93, Jackson v. Mann; or a mistake of the attorney as to a rule of practice. 1 Cain. 22, Sheffield v. Watson; 2 Cain. 378, Patrick v. Hallett. See farther what are sufficient causes to prevent the judgment of nonsuit, 1 Cain. 6, 58, 129, 1 Johns. Ca. 242; 2 Cain. 246; 3 Cain. 94, 128; 7 Term 178; 1 East, 554. Where the plaintiff withdraws his record after entering it for trial, the defendant may have judgment as in case of a nonsuit; 1 East, 346, Burton v. Harrison. But where a cause has been made a remanet by consent, defendant may move for judgment, if plaintiff withdraw the record. Gadd v. Bennett, 2 Barn. & A. 709.|| Indeed, the Court of Common Pleas have lately holden, that in all cases where an application is made for the first time for judgment as in case of a nonsuit, it is a sufficient answer to it, to undertake peremptorily to try, without alleging any reason for not having before tried the cause; and that whatever might have been formerly the practice, in future, it should be understood, that the first motion for judgment, as in case of a nonsuit, is only a mode of obtaining a peremptory undertaking to try. Mallet v. Hilton, 2 H. Bl. 119. It seems now, by the practice of the courts both of B. R. and C. P., that the judgment as in case of a nonsuit cannot be moved for till the third term after that in which issue is joined. Hall v. Buchanan, 2 Term R. 734; Da Costa v. Ledstone, 2 H. Bl. 558. And though in the case of Frampton v. Payne, in C. P., 1 H. Black. 64, it was held that the motion might be made the next term, where issue was joined in the six first days of the preceding term, yet that case seems now to be overruled. (B) Who may be Nonsuit. Baker v. Newman, 1 H. Black. 123; Woulfe v. Sholls, Ibid. 282; Munt v. Tremamondo, 4 Term R. 557; Tidd's Prac. 806, 807, (7th edit.) But if notice of trial has been actually given in a town cause for a sitting in or after term, the defendant in K. B. and C. P. may move for judgment in the next term. Hay v. Howell, 2 N. R. 397; Tidd's Pract. ubi sup.; and vide 2 Saund, 336 b, c.|| Replevins and actions qui tam are within the statute. Barnes, 315, 317. ||And an affidavit of excuse, however slight, for not proceeding to trial, is sufficient to discharge the rule in a qui tam action, as well as any other. Stone v. Farey, 1 East, 554, and vide 7 Term R. 178. Affidavit that plaintiff did not try, because his attorney heard that a material witness would not be found in time for trial, held sufficient. Robinson v. Chapman, MSS. M. 1827, K. B. [A replevin is not within the statute; for in replevin both parties are actors, and the defendant may carry down the record by proviso. Jones v. Concannon, 3 Term R. 661; Shortridge v. Hiern, 5 Term R. 400; {1 Johns. Ca. 247, Barrett v. Forrester.} Judgment as in case of a nonsuit may be given in a traverse of a return to a mandamus. Rex v. Mayor, &c., of Stafford, 4 Term R. 689.] So also in a writ of right, Almgill v. Pierson, 1 Bos. & P. 103. If plaintiff was ready, but the cause did not come on, because the view was not returned by six jurors, judgment shall not be signed. Barnes, 498. If defendant has obtained a rule for judgment nisi, the court will not give plaintiff leave to amend his declaration by striking out allegation, but judgment shall be absolute. Barnes, 318. Judgment as in case of a nonsuit, may be moved for without term's notice, though no proceedings in a year. Barnes, 308; 5 Term R. 634. In replevin, if plaintiff does not appear at the trial, but defendant brings down record, nonsuit shall be entered, and not verdict for defendant; if it is, it shall be so amended at defendant's cost. Barnes, 458. [Where a plaintiff has once proceeded to trial, judgment as in case of a nonsuit cannot be entered for not proceeding to a new trial. Porzelius v. Maddocks, 1 H. Bl. 101.] {Contra, in New York, 2 Cain. 378, Patrick v. Hallett; 1 Johns. Rep. 541, Jackson v. Meyers.} If plaintiff defers proceeding, in order to await a decision of a similar question in another cause, he will not be relieved against a rule for judgment, as in case of nonsuit, unless he show to the court what is the point to be decided, and in what cause. Wynn v. Bellmon, 6 Taunt. 122. But if plaintiff oppose the rule, on ground that documentary evidence could not be procured in time, he need not state what the evidence is. Greenhill v. Michell, 6 Taunt. 150. The court will not entertain the motion pending a demurrer. Butcher v. Kiernan, 2 Marsh. 364. But after judgment for defendant, on demurrer to special pleas, there may be judgment of nonsuit against plaintiff for not proceeding to trial on other issues. Praxton v. Popham, 10 East, 366.|| (B) Who may be Nonsuit. It is everywhere agreed that the king, being in supposition of law always present in court, cannot be nonsuit in any information or action wherein he himself is the sole plaintiff. But it is held, that any informer qui tam, or plaintiff in a popular action, may be nonsuit, and thereby wholly(a) determine the suit, as well in respect of the king as of himself. Bro. Nonsuit, 68; Co. Lit. 139 b; Roll. Abr. 131. (a) But qu. if this does not mean a nonsuit on the merits, and if such plaintiff, by collusion with the defendant, does not choose to proceed, whether the king may not proceed for his share of the penalty?—In a qui tam action, judgment as in case of a nonsuit may be entered on a rule to show Watson v. Johnson, P. 25 G. 2; 1 Wils. 325. cause. If an infant bring an assize by guardian, although that the infant disavow the suit in proper person, yet no nonsuit shall be awarded. 39 Ass. pl. 1; 2 Roll. Abr. 130, S. C. Where an executor need not name himself executor, he shall pay costs upon a nonsuit, and the naming himself executor shall not exempt him from it. 6 Mod. 181. If an attorney of Common Pleas is sued in an action there, he shall not be demanded, because he is supposed always present aiding the court. (C) In what Actions there may be a Nonsuit. A PERSON may be nonsuit in a writ of error. 2 Roll. Abr. 130. A person may be nonsuit in a writ of false judgment. One cannot be nonsuit in any action in which he is not an actor or demandant; and though he afterwards become an actor, yet not being originally so, he cannot be nonsuit as an avowant. So, if garnishees who be come actors, but were not so originally. 22 E. 4, 10. So, if a person outlawed hath a charter of pardon, and sues a scire facias against the party, though hereby he is an actor, yet he cannot be nonsuit. 2 Roll. Abr. 130. So, if a man traverse an office he cannot be nonsuit, although he is actor, for he hath no original pending against the king. 2 Roll. Abr. 130; Dyer, 141, pl. 47, this is made a quære. But in a petition of right against the king the plaintiff may be nonsuit. 11 H. 452; 2 Roll. Abr. 130. So, in an audita querela to avoid a statute, the plaintiff may be nonsuit, for he is plaintiff in this action. 47 E. 3, 5 b. If to two nihils returned on a scire facias on a charter of pardon, the plaintiff does not appear, he shall be nonsuit; for the statute ordains, that upon his appearing he ought to count against the defendant. 45 E. 3, 16. See 1 Camp. 484.|| In ejectment if the defendant do not appear at the trial, and confess lease, entry, and ouster, according to the consent rule, the practice is to call the defendant, and on his non-appearance or refusal to comply with this rule, to call the plaintiff and nonsuit him, and then at the plaintiff's instance the cause of nonsuit is endorsed upon the posted, which entitles the plaintiff to judgment against the casual ejector when the posteù is returned into court. If there be several defendants and some of them refuse to appear and confess, it is the practice to proceed against those who do appear, and enter a verdict for those who do not, endorsing upon the posteà that such verdict is entered for them because they do not appear and confess; and the plaintiff's lessor will then be entitled to his costs against such defendants, and to judgment against the casual ejector for the lands in their possession. Tidd's Prac. 918, (8th edit.) But in ejectment by landlord against tenant on the statute 1 Geo. 4, c. 87, § 2, whenever it shall appear upon the trial, that such tenant or his attorney has been served with due notice of trial, the plaintiff shall not be nonsuited for default of the defendant's appearance, or of confession of lease, entry, and ouster; but the production of the consent rule, and undertaking of the defendant, shall in all such cases be sufficient evidence of lease, entry, and ouster; and the judge before whom such cause shall come on to be tried, shall, whether the defendant shall appear upon such trial or not, permit the plaintiff on the trial, after proof of his right to recover possession of the whole or of any part of the premises mentioned in the declaration, to go into evidence of the mesne profits thereof, which shall or might have accrued from the day of the expiration or determination of the tenant's interest in the |