
    Rockingham,
    No. 5447.
    Ralph T. Harris & a. v. Hampton.
    Argued March 2, 1966.
    Decided April 29, 1966.
    
      
      Shute & Engel and Francis J. Frasier (Mr. Frasier orally), for the plaintiffs.
    Upton, Sanders & Upton (Mr. Robert W. Upton orally), for the defendant.
   Duncan, J.

It has been settled in this jurisdiction since Judge of Probate v. Abbot, 13 N. H. 21, “that the plaintiff may become nonsuit as a matter of right before opening to the jury.” Leonard v. Fahey, 87 N. H. 170, 171. See Barrett v. Cady, 78 N. H. 60, 63; Webster v. Bridgewater, 63 N. H. 296; Annot. 89 A.L.R. 13, 23. After a case is opened “leave to become nonsuit is within the discretion of the court.” Ingalls v. Railroad, 83 N. H. 397. The Court in this case could properly find that by proceeding to trial upon the appeals in question and presenting testimony before the Tax Commission, the plaintiffs had waived their right to become nonsuit, and could not assert that justice required nonsuits to be permitted in the Court’s discretion. Ingalls v. Railroad, supra, 398-399; Saykayly v. Manchester, 97 N. H. 4; Dorney v. Dorney, 98 N. H. 159, 160. See Maryland Casualty Co. v. Martin, 88 N. H. 346. They “could not at the same time invoke the judgment of the Court upon the merits . . . and deny its jurisdiction.” Dolber v. Young, 81 N. H. 157, 159.

Exception overruled.

Lampron, J., did not sit; the others concurred.  