Love v. Humphrey

9 Wend. 500

• Court: New York Supreme Court
• Decided: April 15, 1833
• Status: Published

Opinion

By the Court,

Nelson, J.

The English practice would probably sustain the plaintiff’s attorney in the course pursued by him in this cause, 1 Str. 532; 7 T. R. 473; 1 Com. L. R. 445; 2 Archb. Pr. 32, 249; but our practice is different, and for reasons which should induce the court to adhere to it, were it not settled, (as it is,) by paramount authority. Backus v. Richardson, in error, 5 Johns. R. 476.

If there is a demurrer to one count, and issue upon another, and judgment for plaintiff on the demurrer, and he be content to take the damages thereupon, he may enter a nolle prosequi as to the issue, and assess his damages by executing a writ of inquiry, or obtaining an assessment by the clerk, as the case may be ; but in such case he must enter a nolle prosequi, and cannot afterwards try the issue. 1 Salk. 219. 1 Str. 532. 1 Saund. 109, 111. 2 Archb. Pr. 11, 249. If he seeks to recover damages on both counts, he must suspend the assessment upon the judgment on demurrer until the trial of the issue, and take out a venire tarn quam. The same practice is of course applicable where issue is joined upon part of a count, and a demurrer put in as to the residue, which is allowable by the rules of pleading.

The practice in England, as appears from the authorities above referred to, is to enter the nolle prosequi at any time before final judgment, so far as the assessment of damages is concerned, and without leave of the court. 2 Archb. Pr. 250. In this court it must be entered before the issuing of the writ of inquiry, so that the writ contain no more of the pleadings than those upon which damages are assessed, for the reasons given in the case of Backus v. Richardson.

■ Whether leave must be obtained by an application to the court to enter a nolle prosequi, is a question I do not consider as settled by the case of Backus v. Richardson, though that practice is countenanced by the senator whose opinion prevailed in that case. I cannot imagine any reason for the trouble or expense of such proceeding. Wherever a party may enter a nolle prosequi, it is a matter of course, and is, or would be, always at his peril. There are cases where the practice is not justified, 1 H. Bl. 108; 4 T. R. 36; but in those cases leave would.not be granted on application. Whether the adverse party would be entitled to costs as a consequence of this step, in any given case, is not necessarily connected with the act; if he was, and payment was omitted or refused, a summary remedy is at hand. In most cases the practice would be, confessedly, matter of form, and this is no doubt the reason that the practice for which we are contending has ultimately prevailed in England.

It is contended that the writ of inquiry is irregular’, because executed in the county of Montgomery, it appearing that the act of the defendants was committed in Schenectady. The statutes requiring the plaintiff in an action against a public officer,- deputy or assistants, to prove the acts done, for the doing of which the suit is brought, in the county where the venue is laid, 2 R. S. 353, § 14, id. 409, § 3, are applicable to a “ trial,” and not to an assessment by execution of a writ of inquiry. Even upon a trial, if the facts should appear as strong as stated in the plaintiff’s replication, I should entertain serious doubts whether the defendant would be entitled to the benefits of those provisions, as the whole proceedings on the part of the plaintiff in the warrants in both counties were obviously a trick, and fraud upon the law, and his co-defendants are alleged to have acted with full notice. It is not, however, important to express a definitive opinion on this point.

The writ of inquiry and inquisition must be set aside with costs. The plaintiff may enter a nolle prosequi and issue a new writ, in conformity with the principles above expressed.