McNaughton v. . Moseley

Mr. Hay, for the plaintiff, prayed, before the verdict was entered, that the plaintiff might be called and nonsuited. I am very clear it may be done at any time before the verdict is recorded.

Mr. Moore, I am as clear it cannot be done, and I pray time to argue it and produce authorities.

Let the verdict be recorded, subject to be set aside if the defendant's counsel do not show that a nonsuit cannot be taken after the jury have said for whom they find.

The verdict was entered, and afterwards a new trial was moved for and granted for another cause.

NOTE BY REPORTER. — The plaintiff is demandable when a verdict is to be given. Co. Litt., 139, a; 3 Bl. Com., 376; in which latter book it is said: When the jury returned back to the bar, and before they deliver their verdict, the plaintiff in person, or by attorney, is bound to appear to answer the amercement; and if he does not appear, no verdict can be given.5 Mo., 208. After a general verdict the Court will not suffer the plaintiff to discontinue his action. 2 H. 4, ch. 7, provides that plaintiff shall not be nonsuited after a verdict, though he might at the common law, if he did not like his damages. *Page 258 2 H. P. C., 184, says it is the opinion of some books that the plaintiff may be nonsuited at the common law at any day of continuance before judgment, though that is altered by 2 H. 4, ideo quaere — What is the meaning of the words, "after verdict given?" Whether it can be said to be given before it is received by the Court and entered of record, previous to which stage the jury may retract or alter it; neither is it complete till the record of it be read over to them, and assented to as recorded.