Majority
p. 131*The People, ex. rel. Davis, against The Judges of the Court of C. P. of the County of Tompkins.
Headnote
On return to an alternative mandamus. Bull sued Davis before a justice of Tompkins; and judgment was for Davis, who appealed to the C. P. On the jury in the C. P. , . , . . . ^ . mg on their verdict and returning to the bar, Bull, the appellee (plaintiff) being called, did not appear or answer; and it was suggested by his counsel that he intended to submit to a non-suit. The court, however, received the verdict, which was 180 dollars in favor of the appellant (defendant); but at a subsequent term ordered judgment of non-suit.The plain-a^eUantTn0» of <?.p-may submit to a non-suit, or thT"™urt as in other
J. A. Spencer, for the relator,
now moved for a peremptory mandamus, commanding the C. P. to vacate the rule.
J. L. Viele, contra.
There are certainly some provisions in the 50 dollar act, especially in the 36th section, inconsistent with the idea that a plaintiff appellee or appellant can be non-suited. But this is a right which the plaintiff has in all other courts. It is a common law right, which we think cannot be taken away by mere implication. The legislature have not denied it expressly; and till they do this, we must take it as their intention that it should remain.
Motion denied.