Den ex dem. Hoover v. Franklin
Supreme Court of New Jersey
AT the circuit in Salem, November 1819, this cause was tried before Justice Rossell. After the- plaintiff had closed his evidence, the defendant moved, that he be nonsuited; at the time, when the demise was laid, the lessor was a marr*e<^ woman- The court directed the plaintiff to be called; but the plaintiff answered, and claimed the r*§bt to receive a verdict.
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AT the circuit in Salem, November 1819, this cause was tried before Justice Rossell. After the- plaintiff had closed his evidence, the defendant moved, that he be nonsuited; at the time, when the demise was laid, the lessor was a marr*e<^ woman- The court directed the plaintiff to be called; but the plaintiff answered, and claimed the r*§bt to receive a verdict. The defendant then proceeded and laid his evidence before the jury: the cause was tried, and verdict was given for the plaintiff. On the coming in of the postea, rule to shew cause for a new trial was granted, and notice was given by…
1Opinion of the Court
*Kirkpatrick C. J. and Rossell J.
The court cannot permit a party to disregard the order for a nonsuit, and receive any benefit therefrom. The verdict must be set aside and considered as if not taken: the postea must be amended, so as to return the nonsuit; and the case must stand, here, upon the merits of the nonsuit.
Southard J.
thought the true rule to be ; that where a nonsuit was directed, the plaintiff might or might not answer. A nonsuit was a voluntary thing. If he did answer, and the defendant relied upon the opinion of the court, and did not give evidence, the plaintiff proceeded at…
2Cases cited3 opinions
- Jackson ex dem. Johnston v. DeckerNew York Supreme Court · 1814
- Zantzinger v. WeightmanU.S. Circuit Court for the District of District of Columbia · 1824
- Roe v. MayorSupreme Court of Pennsylvania · 1795