Majority
p. 452Sherman, by his guardian E. Smith, against James McNitt.
Headnote
One of several ofUSthe™ same plaintiff, and mneVd§ence^ was tried, and verdict for defendant. The ciinedff trying the other made ácase in the one tried; and the Court denied the motion for judgment as in case of nonsuit in the others.But to avoid paying the costs which accrue in the others theTrkdof the first, the plaintiff should apprize the defendants of his intention not to try.
Ingalls moved for judgment as in case of nonsuit, on the usual affidavit that this cause had been noticed for trial at the last Washington Circuit, where the venue was laid, but though called in its place on the calendar was not tried.
S. Stevens, contra,
read an affidavit of the plaintiff’s attorney in these words: “ That a cause in favor of the above plaintiff against one James Wilson, of the same nature, and for the same cause of action, and in which the same defence was pleaded as in this cause, was tried at the last Circuit in Washington county, and a verdict was found for the defendant; that a case has been made in said cause, and is noticed for argument at the present term of this Court ¡ that when the verdict in the said cause against Wilson was given, this deponent in the presence and hearing of the defendant’s counsel[1]
p. 453declined trying this cause before he could get the opinion of the Supreme Court as to the sufficiency of the defence set up in the said cause which had been tried, as the defence in each cause was the same; that the defence in this cause depends precisely upon the same question as the defence in the said cause against the said Wilson, which was tried”
were inclined to grant the motion, at first, for want of the last sentence of the affidavit, which is in italics; but on this being added by the plaintiff’s attorney, they were clear for denying the motion with costs.
Motion denied.