Majority
p. 378Patrick against Hallett and Bowne.
Headnote
There may be judgment as in case of nonsuit for not proceeding to a second trial. A misapprehension of the practice on a point not settled will escusa from the usual costs on stipulating.Motion for judgment as in the case of nonsuit for not going to trial.
Biggs, resisted, because the cause had been once tried, and our act, (1 Rev. Laws, 353,) being like that of the English, required the same construction, under which it was held a plaintiff could not be nonsuited for not trying a second time. If we are wrong we are ready to stipulate.
"We have no doubt of the power of the court to nonsuit on a second trial. A plaintiff who has once tried *his cause, after which the ver-diet is set aside and a new trial awarded, is bound to try again, and again, if necessary; and if he did not, the defendant may apply for a nonsuit. But the English practice has misled, and our own has not been perfectly settled, the plaintiff may stipulate and without costs.
Motion denied on stipulating and costs.