Nonsuit

Not following: failure in a plaintiff to make advance in his cause: a giving up or renunciation of his suit. If the plaintiff is g:uilty of a delay or default against a rule of law, as, by not filing a pleading within the allotted time, he is adjudged *' not to follow " or pursue his remedy as he ought to do, and thereupon a ** nonsuit " or non prosequitur is entered, and he is said to be " nonpros'd." * " The plaintiff thereupon became nonsuit, and commenced this action " in the circuit court.* After a nonsuit, and payment of costs, the plaintiff may begin suit again. After a retraxit — an open and voluntary renunciation of a suit — he forever loses his right of action.' Compulsory or involuntary, and voluntary, nonsuit. When the plaintiff perceives that he has not given evidence sufficient to maintain the issue it is usual for him to be " voluntarily nonsuited," or to A^ithdraw himself.' ' 3 Bl. Com. 295-96, 316; 7 Q. B. D. 332; 12 Vt. 490. For if he was not present when the jury came in to deliver their verdict, no verdict could be received.* An " involuntary " or " compulsory " nonsuit is for neglect, in the plaintiff, either to appear, or, having appeared, for failure to present evidence sufficient in law to support a verdict in his favor.2 ■ In either case, the court, at the request of the defendant or his counsel, may enter a judgment of nonsuit against the plaintiff. Judgments of involuntary nonsuit are not allowed in the Federal courts." Before the evidence in a case is left to the jury, there is a preliminary question fpr the judge, not whether there is literally no evidence, but whether there is any upon which the jury can find a verdict for the party producing it. If there is not suf Qcient evidence, the judge may instruct the jury to find against the failing party. This has superseded the practice of demurrer to evidence: by which a party admits the truth of the testimony and the conclusions of fact the jury may fairly draw, but contests the legal sui Hciency of the testimony. If the court is satisfied that, conceding all the inferences which the jury could justifiably draw from the testimony, the evidence is insufficient to warrant a verdict for the plaintiff, the court should say so to the jury.* It would be an idle proceeding to submit evidence to a jury when they could justly find one way only.* See Defense, Affidavit of; IksTRPCT, 2; Scintilla.