Nonsuit

A judgment of nonsuit is only given after the appearance of the defendant, when, from any delay or other fault of the plaintiff against the rules of law in any subsequent stage of the case, he has not followed the remedy which he has chosen to assert his claim as he ought to do. For such delinquency or mistake he may be nonpros'd , and is liable to pay the costs. But as nothing positive can be implied from the plaintiff's error as to the subject-matter of his suit, he may reassert it by the same remedy in another suit, if it be appropriate to his cause of action, or by any other which is so, if the first was not.

A judgment given against the plaintiff when he is unable to prove his case, or, when he neglects or refuses to proceed to trial, judgment of nonsuit dismisses the action, but does not determine the issues. Voluntary nonsuit is an abandonment of his cause by the plaintiff either before the trial is commenced, or during the presentation of his case. Involuntary nonsuit is judgment of nonsuit ordered by the court where plaintiff fails to appear, or where he has given no evidence on which a verdict in his favor could be rendered.

A failure to follow up a cause; a relinquishment of a cause by the plaintiff at the trial, either voluntary or by the order of the court; an order at the trial, compelling the plaintiff to abandon the further prosecution of the action. A nonsuit is voluntary where the plaintiff, discovering some error or defect which cannot be remedied, or finding that his evidence is not suf Scient to maintain his case, absents himself, or fails to answer when called to hear the verdict It is compulsory where it is ordered by the court on the ground of the insufl Sciency of the cause of action, or of the evidence, or the like.

Not following up the cause; failure on the part of a plaintiff to continue the prosecution of his suit. An abandonment or renunciation of his suit, by a plaintiff, either by omitting to take the next necessary steps, or voluntarily relinquishing the action, or pursuant to an order of the court. An order or judgment, granted upon the trial of a cause, that the plaintiff has abandoned, or shall abandon, the further prosecution of his suit. A voluntary nonsuil is one incurred by the plaintifi’s own act or omission, and is a judgment entered against him as a consequence of his abandoning or not following up his cause, or being absent when his presence is required. An involuntary nonsuit is a judgment entered against the plaintiff by direction of the court wheu, upon trial, he has not adduced any evidence on which the jury could find a verdict under the rules of law.

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.

A renunciation or givmg up the suit by the plaintiff. This is usually done on his discovering some error or defect, or when he finds tliat his evidence is not sufiicient to maintain his case. The stage of the proceedings at which a plaintiff is nonsuited is usually just before the judge has summed up, but it may be done at any time before the jury have delivered their verdict. It is, however, entirely optional with the plaintiff whether he will submit to a nonsuit or not; he cannot be compelled to do so, but may insist on the case going to the jury, and take his chance of the verdict. In cases, however, where it is doubtbe nonsuited; because, after a nonsuit, he may commence another suit against the defendant for the same cause of action, which may be advisable, if he can come better prepared with evidence, or can otherwise repair the defect which was the cause of his failure; but, if a verdict is once given, and judgment follows, he is barred. Brown. A nonsuit is properly the voluntary act of the plaintiff in deserting his action; and the difference between a nonsuit and non pros. is, that in the former the plaintiff, being called upon in court to proceed, advisedly abandons the suit, because he sees it is likely to go against him; in the latter, he simply neglects to take the proper steps. A nonsuit may, however, be entered by the court above, on application made by the defendant, pursuant to leave reserved by the judge at the time of trial. And, since the judicature act, 1875, any judgment of nonsuit, unless the court or a judge otherwise directs, is to have the same effect as a judgment upon the merits for the defendant. Mozley Sf W.

The name of a judgment given against a plaintiff, when he is unable to prove his case, or when he refuses or neglects to proceed to trial of a cause after it has been put at issue, without determining such issue. It is either voluntary or involuntary. A voluntary nonsuit is an abandonment of his cause by a plaintiff, and an agreement that a judgment for costs be entered against him. An involuntary nonsuit takes place when the plaintiff on being called, when his case is before the court for trial, neglects to appear, or when he has given no evidence upon which a jury could find a verdict. 13 John. R. 334. In Pennsylvania the court cannot order a nonsuit against the consent of the plaintiff, who has given evidence in support of his claim. 1 Serg. & Rawle, 360; 2 Binn. 234; 4 Binn. 84. Vide article Judgment of nonsuit, and Grah. Pr. 269; 3 Chit. Pr. 910; 1 Sell. Pr. 463; 1 Arch. Pr. 787; 5 Bac. Ab. 140; 15 Vin. Ab., 560.