Campbell v. Munger — 1 Cai. 129

Majority

p. 183

Campbell against Munger and others.

Headnote

If several actions, turning on the same point, be noticed for trial, and on the hearing of the first, the judge direct a nonsuit, exception to which is taken by the counsel of the plaintiff, he shall not be liable to judgment as ir case of nonsuit for not proceeding to trial on the other causes, nor be obliged to stipulate, and the costs shall abide the event of the suit.

This was a motion for judgment as in case of nonsuit for not proceeding to trial. The affidavit, on which, it was grounded, stated, that issue was joined in January term, 1802; that the cause was duly noticed for the circuit in the same year; that it was not then tried, and was noticed again for the circuit in May last, when it was not brought on, though it was one of the oldest issues on the calendar, and no countermand of trial had been given.

Van Antwerp

resisted the application, on a deposition made by himself, admitting *the notice [*130] for the last circuit, but setting forth also, that this cause, as well as another at the suit of one Elijah Montgomery against the same defendants, were actions of trespass guare clausum, involving the same question and same defence; that on the trial of the said cause, Montgomery was nonsuited by the direction of his honor Mr. Justice Kent, to which an exception was then taken, and by consent of the defendant’s attorney, the making up of the case was postponed till this term; that it was understood and agreed, between the deponent and the defendant’s attorney, that the decision in one of the causes should be conclusive in the others; and thereon, shortly after the trial, so as above said to have been had in the other cause, the witnesses for both parties were dismissed, and that it was very doubtful whether a trial in this present action could have been had.

This is a motion for a nonsuit for not pro

p. 184

ceéding to trial at the last circuit in Saratoga. The plaintiff’s attorney thought it unnecessary, until the opinion given by the judge could be reviewed by this court, to bring on the trial of this cause; and he swears that “ it was un derstood, and agreed, between the defendant’s attorney and himself, that a decision in the cause tried should be conclusive in the other, and that, thereupon, shortly after the trial, the witnesses of both parties were dismissed.”

Without relying much on the agreement of the attorneys, which was not in writing, the court think the plaintiff has accounted satisfactorily for not bringing this cause to trial. He noticed it in good faith, and appears to have been prepared to try it, but finding the opinion of the judge against him in another cause embracing the same question, and depending on the same evidence, [*131, 132, 133] it would have been folly *in him to proceed in the others until the judgment of this court could be had.^[1] We think, therefore, that he ought not to stipulate, and that the costs for not proceed- ■ ing to trial abide the event of the suit tried.

Judgment of nonsuit refused.

[1] [1] See Brant v. Fowler, 2 Wend. 284 ; Palmer v. Mulligan, 2 Cai. R. 95 ; Jackson v. Leggett, 5 Wen. 83 Sherman v. McNitt, 2 Cow. 452 .