Cunningham v. Duncan

1 Ant. N.P. Cas. 61

• Court: New York Supreme Court
• Decided: November 15, 1808
• Status: Published

Opinion

Thompson, J.

I know of no. such distinction. Let a non-suit be recorded.

(2)

Woods, for the plaintiff.

Bogd, for the defendant.

The distinction suggested by the counsel in this case, has been frequently asserted in practice; but, upon a diligent examination, I have not been able to find a single case, nor even a dictum of any judge or writer, in support of it. The theory of the law on this subject is directly opposed to it. Before the jury deliver their verdict, the plaintiff is bound to appear in court, by himself or by his attorney or counsel, in order to answer the amercement to which, by the old law, he was liable, in case he failed in his suit, as a punishment for his false claim. And if he does not appear, no verdict can" be given, but the plaintiff is said to be non-suit, non sequitw clamorem smm. 3 Com. 376. Although the amercement is no longer, in fact, exacted, still all the ancient forms attending it are observed, viz: The calling of the plaintiff before the verdict is pronounced, and if pronounced against him, or if ho is non-suited, the formal entry of judgment, that he be in misericordia pro fatso demore. This then being the true reason for calling the plaintiff, it is immaterial whether the jury have retired or not, the plaintiff must always be called.

The Code of Procedure, and the rules of court carrying the code into effect,,supersede the learning (for all practical purposes, at least,) contained in this note. It is now declared, in rule 26, that it shall not be necessary to call the plaintiff when the jury return to the bar to deliver their verdict, and the plaintiff shall have no right to submit to a non-suit after the jury have gone from the bar to consider of their verdict.