
    
      CHEDOTEAU’S HEIRS vs. DOMINGUEZ.
    
    Appeal from the court of the second district.
    An appeal lies from a ju'dg-mentof nonsuit. There canribt be a nopsoit after a general verdict.
    If tlie judg-rnerit ⅛ xevers-, éd, and there is no statement of facts, llittsu-preme court cannot proceed to judgment on issues found generally, in .which tlie jury-pronounced on the law and .tlie fact.
    The plaintiffs claimed an undivided half of a tract of land, Which they a Hedged to have been, at the death of their father, the common property of their parents.
    The defendant pleaded the general issue, expressly denying that the plaintiffs’ father had any title to the land ; alleging that, if he had, a,t. his death, it became the property of the widow, according to law ; thav.be. bought it of hep, and ope of the plaintiffs,, attested the bill of sale, as a witness ; (hat he had been in quiet possession since 1S16, and the plaintiffs have, respee-tiyelyi received from the widow, the price of their portion of the laud, which made part of the esta e -of their father.
    fue case was- submitted to the iüry, following issues:
    Was no i tu e iand, the common propeftyof the plamtids’ pareats, at the death of their father ?
    How loug had they been in possession of it ?
    VV as the heir, who attested the bill of sale,' of age at the time ?
    Had not the defendant been in quiet posses^ sion one year, at the commencement of the suit ?
    Did not the land become the property of the widow, by adjudication, or the plaintiffs cpn» Sent, at its valuation ?
    Did she not pay this valuation ?
    Did not *he plaintiffs reside in the parish, at the time the widow sold the land to the defendant, and was not her deed attested by one of them?
    The jury found that the land belonged to the plaintiffs’ parents.
    That it had b<longed to them for fifteen years,
    That the heir, who attested the deed, was then of age.
    That the defendant had been in' quiet possession a twelvemonth, at the inception of the suit.
    That the widow remained the real proprietor of the land, for the price of its valuation, at tl , , , , , , death ot her husband.
    That she paid to all the plaintiffs, except one, # their respective shares of the price.
    That the plaintiffs were in the parish, when the widow sold the land to the defendant, and ope of them attested her deed.
    After the finding of the jury was recorded, there was judgment of non-suit, with costs to be paid by the plaintiffs, on their own motion, and the defendant appealed.
    
      Eustis, for the defendant.
    It is incumbent on us to shew, that, an appeal will lie in this case, and that there is error apparent bn the record, th$t injustice has been done, and that we are entitled to relief.
    This appeal is taken from a non-suit, as it is styled. This is a final judgment. It is suck an ope, as will support an appeal. 2 Martin, 135, Lefevre v. Broussard. The law of 1807, authorised appeals to the late superior court, from all final judgments and the court sustained an appeal, From a judgment of non-suit, under this act„: « By the court — An appeal surely Ses, from a judgment of non-suit. If it was otherwise, the party injured would be without A simpe^y.”. ,, ; ■
    
      It appears ftom the reéord, that the matter 1 1 dispute exceeds the sum of §300, as the plaintiffs claim one thousand.
    The court beloV erred, in permitting the plaintiffs to he non-suited, after a verdict was pronounced; and recorded. The term non-suit, though not recognized by any of our statutes, has crept into the practice of our courts. It is frequently used in their rules and proceedings, and is mentioned in the reports. It is acorn-mon law expression, and our courts have given it the same effect as it has at common law. Thus, it is held to be no bar to another action, and is sometimes ordered on the non-appearance of the plaintiff. If we consider a non-suit, in its common law import, a non-suit after verdict,' Would be quite an anomaly in judicial proceedings. 3 BlacJcistone’s Com. 376. Sellan’s Practice, 463, 4 : in the latter it is observed, “ If once he suffers the jury to pronounce their verdict, he cannot prevent its being recorded and elect to be non-suited.”
    A discontinuance has been granted after a special verdict. 1 Salkeld, 178. The difference between a discontinuance and a non-suit, is evident, and is fully shewn iu 3 Blackstoner8 Com. ¾16,
    If the court should consider the not-suif as 
      a. rénúneiatio litis ;xm the papfe'ofthe píáítt* tiffs in the court beidw, from the principles laid ; ¿own in the case of Hunt v. Morris, 6 Martin, ⅝ ⅛ the judgment of the court must be annulled. _ In that case, the court say that in matters of this sort, the judge is bound to eyercisji ⅛ “ sound legal discretion;” and the decision of the district court, in refusing to grant a discontinuance after the evidence was closed and the argument opened, was sustained. It cánnot be called legal discretion to permit a party to withdraw from court after there is a verdict against him, after the matter in dispute has been "decided by his peers. Indeed, if this practice be introduced, our trials by jury will become useless : the defendants will be at the mercy of plaintiffs ; for, if a verdict is against them, they caá retire, renew their strength, return and persevere in the contest, until a jury can be found, who will decide in their favor. The only mean of avoiding these difficulties is to make a verdict, in the court where it is rendered, res judicata between the parties; subject, at the same time, to motions for new trial> and in arrest of judgment, and* to appeals to this court»' The party, if he thinks himself aggrieved, baa the remedies afforded him by law, which are aaffident-to meet every case of grievaa<& wMcU «an be imagined : and, it is conceived, that it ,. „ is inexpedient in the present liberal state of our practice, to render it. still «oré difficult to bring suits to a terihination. " ... '
    ... . This case comes up without any Statement of facts, or bill of exceptions. The special verdict alone, affords to this court every means of forming a proper opinion of its merits. Nothing appears on the record to impair, its validity! and this court must support it. On the, part of the appellant, we respectfully request such a judgment from this Court, as the court below ought to have given on the verdict. We thinli We have shewn that the court» erretf in. permitting the plaintiffs to become non-suit, and will ^attempt do satisfy the court of the propriety-,-of rendering a judgment for,the appellant, quieting him in the possession of the land in question.
    It has been decided that, “ therfinding'of a jury must be understood w it!) a reference to the pleadings.” 3 Martin, 454, This rule is equal* ly the dictate of common sense* and the princi.* splés oflaw. he practice itt our courts,uf subs spitting facts to the jury, requires suchéa rule as ■ jhis to prevent abuses, which might he made of Ignorance of juries. In the statement of facta, law terms are frequent ly usedwhich all juries cannot b« expected to understand ; and t|up verdicts are returned in common language, ... . , _ , . . „ , ° . which would not be decisive of tne questions propounded; did not" courts give effect to their . . . import under tne principle just quoted-
    '[⅛ plaintiffs, in this case, claim one half of a tract of land described in the petition, as belonging to their deceased father, of whom they are the heirs. They av*r, that at the death of their father, .the property of the community (¡which subsisted between their mother and deceased father; in which this land must have been included, as they only claim one half of it, as heirs of their father) was inventoried and sold : that the land in question was not sold: that their mother took possession of it, intermarried with one Augustin, and with her husbandy sold the land to defendant in 1816, who is now in possession.
    The answer denies generally, the allegations óf the petition : pleads in substance, that at the death of the plaintiffs ancestor, the land was adjudicated to his widow ; that he has been in peaceable possession more than one year.
    The only question which now presents itself is, whether at the dhath of ChedóteaU, the ancestor, his widow became proprietor of the pifc* tion of the land, claimed by the plaintiffs.
    ltis admitted by the petition, that the defendant purchased of live widow Chedoteau and her second husband, and that he has been in posses* sion since 1816.
    The jury find that the land belonged to Che* déteau and his wife — that the defendant has been more thah a year in peaceable possession; that the widow Chedoteau remained real proprietor of the land at the price of the estimation; at the death of Chedoteau ; that the widow has ^aid the price to all the heirs except one. The other facts found are immaterial.
    The fifth fact found by the jury decides the cause. They have determined that the land Was the joint property of the husband and wife; a*d on tbe demise of the former, the latter became proprietor of the land at tbe price of the estimation.
    The jury was not composed of civilians ; their verdict is not couched in the ⅛⅜⅜⅛¾⅛! language Of the law. It is not probable that ¡ they all knew the meaning)pf il adjudication,’* and they certainty evinced their discretion ⅛ | not dealing in language, which they might not illy have understood. They have expressed their meaning in plain language, which fio ini geufiify caú'Místort, and which ipánnot bé mis* understood. Wfe ask is, that effect mayj# |ven to tie verdict, that the defendant may not Ibe harassed with another suit, after a jury have . . . decided this m his favor,
    
      Morse, for the plaintiffs.
    The defendant’s counsel, to shew that an appeal lies in this case, relies alone on the decision of the late superior Court, in the case of Lefevre vs. Broussard. 8 Martin, 125, in which the court has said “ an appeal surely lies from a judgment of nop-suit.” Had the eourt stopped here, the question *vould have been settled ; but they have thought proper to proceed, in giving their reason for that opinion, in the following words : If it was otherwise the party injured would be without a remedy,”
    Now, if this court should find, upon examination, that the present case differs so materially from the one cited from Martin, that the reason given by the court, in the latter case, cannot be. made to apply to the other, T should imagine this court would not hesitate to say, that fhe case Cited was Of no authority; it being a maxim of reason as well as law that where the reason of the principle or authority ceases to apply, thepe the authority must also cease. I,et us examine the two cases and ascertain •^herein the difference exists^
    The case, cited as authority from 3 Martin, 
      .Was thatof a peremptory nonsuit; ordered by the court against the will and consent of tKe plain* tiff, and from which, considering : himself ⅝⅜-grieved, he prayed an appeal to the supe"|if>r court,: Here, we find, the reaspn of the learned judge applies with full force in maintaining tft appeal : “ If it were otherwise,” says he, “ the party injured would be without a. remedy. For/,~cuntí n ties the same judge, “although h§ -¿light bring a new suit, the parish court wo&ld likely give the same judgment,’5 and the párty injured would never obtain justice.
    Here also we find the injury, and,the injured party appealing to a higher tribunal to obtain redress, and the reason of thé Court was well applied in sustaining, the appeal in such a case| were it otherwise there would have been a de» nial of ordinary justice. ⅞
    In the case uow before the court; is there timsSlightest resemblance in any featpre? 1¾ that case the nonsuit w;as the unsolicited order of the Court, against the consent and: the inters ésts of the plaintiff. . ■ ⅜
    In the present case, the nonsuit was a volnt& tary act of the plaintiffs’, and solicited by theiU from the court, and for which they were witling to pay the costs. In that case, the party ins jured appealed, jvln this,^the party <|efead8«(f who has sustained no injury. In short, fn that case there was an aetnal injury* which the ap* peltate court was bound to«a®uire into and re* ■ . medy, But in this ease, there hasbeen no .other injury sustained,than to the plafetiffs, which it appears, was at their own solicitation, and Which they are willing to submit to.
    Whether the plaintiffs had sufficient reasons $S* adopting this course, is not; I presume, # question for the decision of this court. * f
    Hundreds of cases may, and do daily, occur wherein it is prudent in plaintiffs’ counsel to submit rather to the inconvenience and expense of a non-suft* than ⅛⅛¼ the final decision, of animportaht cause. New and important points may arise in the progress of the cause, which counsel did not forésee, or were unpreparedfor; the establishment' of facts rendered necessary ®n the trial of the cause, and after the jury had passed* Upon those submitted to them, whiclj Were not before deemed important; these and many others, which, will suggest themselves to the court, may render it advisable to.pursue the course which the plaintiffs have done in this ease.
    Of what, then, does the defendant complain ? Actual injury; it is admitted he has sustained pone. The plaintiffs have already paid th| tmice of their non-suit What atore, then, csan . ⅞ . . the (JtefendajDt, in justice, wish or desire r Itor toy part I cannot conceive, -unless lifce o®e of Cervantes’ tines, “ he wants better bread than ' y tuíit mflucr 01 whcftti - * i;
    . But the counsel tell us, that although bis client has yet sustained no injury that caá give tliis court jurisdiction, yet that he is in dread of something that is to happen, from which hemay possibly suffer.
    This something we are gravely told is this, that if the plaintiffs are permitted to avail themselves of their nou-suit, “ they can retire, renew their strength, return, persevere in the contest until they can find a jury who will decide fe their favor,” which means, I presume, in iplain Knglish, that the plaintiffs can institute ¡another stót — admitted^-iú^óing thisf the plaintiffs’ object must he either to oppress the defen* dant, and impose on the court, or to obtain justice"5 if the latter, I realty see nothing in this attempt, calculated to alarm the defendant or his counsel , much less to cause all those disastrous consequences which theyseem to apprehend.
    If, however, the plaintiffs are influenced by a disposition to harrass and oppress the defendant and trifle with the: court, ought ^e^not to presume that the learned judge of the ⅛⅝⅛⅛ piftggefsses sufficient discernment to dfetongtdsfe, . ... * , ' an” ener.?y epoug# to protect the one aa® pun* %h tine other. What daugereai.i possibly desalt to anyone, in leaving;io the district fudge the exercise of a proper discretion to act as citcutn^ stancei may render it expedient ? ’' The conduct of both parties is before him, and the insult, if an^, ⅛ to. the court over which he presidés.-⅛ In whom then, I would ask, can this discretion be so properly invested ? The appellant’s counsel says in -this court, and tells us that the only mean «of* avoiding these difficulties, is, for this court to make a verdict in the Court where it is rendered res judicata, between the parties.-'- '
    Tide* I conceive, could ffiave no other e£ feet than to deprive the district judge of all discretionary powtÉIlfí and render him worse than a nullity^otii his own bench. ⅜
    TL Is theré error apparent onihe face of the record, or, has the district judge ewed in giving judgment of non-suit? It is contended by the appellants ennnáfel, that the appellees were not. entitled to a ndhsuit after verdict -recorded. Trial by jury being unknown to the civil law, We are referred by th e áppe Hants cou nsel to the coawpon iawoi*Í&nglaí»4i whence we hafe blw»' rowed that mbdb of trial with all itá incidents, ' . and we are told by tke same counsel, that ^11 ■we consider a nonsuit ⅛ its Common la# hn-port, a nonsuit after verdict would be quite airt * ' # r anomaly in judicial proceedings.” If, as the gentleman contends, the comm<m lawJ is- to lie bur rule of decision, T apprehend the gentle* man has entirely mistaken it, T contend that, by the common law judgment of nonsuit might be rendered at any time either before or aftft Verdict. In support of this principle l have high, and, I presume, unquestionable authority. Such, I am prepared to shew, was always the common law of England, and so considered there by the judges, until the passage of Aé statute of S Henry IV.
    I refer the court to Coke oh Littleton 11*0, § 209 «V. where we find the principle clearly established. “At the common law,” says the ait* thor,” “upon'every continuance or day given over before judgment, the plaintiff might 'have been nonsuited, and, therefore, before the statute of S Hen. 4, after verdict givén, if the court, 'gave a day to be advised, at that day the plain* ttff wifs dema*idabfe,a.nd, tberefore, might have’* been nonsuit.** ⅛ , 1 -'⅝ *
    The sáme doctrine- is also found in 5 Bacon*% ■ 4#. “At common law upon every continuance the plaintiff was demand able- ' ... . ,V, , and upon ms non-appearance might have pee,® nonsuit,” and in 5 Modern, ¾08, if further an- - ' ’ thority is, required, a strong case is presented, • it is said “at common law, if the plaintiff dif apt like the damages given hy the jury»-be might be nonsuit.” Unless the appellant’s counsel is prepared to shew that the statute 2 Hen. 4, is /,»in force in Louisiana, the powers of the judges must, I presume, remain as at common law»
    These authorities, as well as the statute 2, Hen, 4, the court will observe, relate to general verdicts, and should there still remain any doubt in the minds of this cóurt, ás to the propriety of nonsuiting the plaintiff, after a general verdict, I believe it has never been seriously questioned, that after a special verdict it may be done : such is the daily practice in England^ even subsequent to the statute of Henry. Bacon, observing on this statute, says, “but,, notwithstanding this statute, the plaintiff may be non* suited after a special verdict, or after a demurrer and argument thereon.” 5 Bacon?# JLbridg-r^mt ,144» .
    ÍTU1 it be contended that theyerdit in thin casé is a general verdict,? *In my opinion it re?-sembléis every thing.else bnt that, It decides Up law, opr ⅛ theru,.any ¡general finding ejthefc for plaintiff, or defendant, but a special finding of certain facts submitted to them, and upon which' no general verdict under the law could have been found by therjury, or received by theicourt.
    > lf, then, the verdict is special, the district judge did not err ⅛ granting judgment of non-suit" after verdict rendered and recorded. BUt here a question of some considerable importance to the practice of our courts presents itself for examination.
    Has the verdict in this case ever been legally rendered, or recorded?
    If the common law practice is tobe our guidei this question must be answered is the negative.
    By that practice it is necessary to call the plaintiff before the verdict is rendered Or recorded; this does not appear from the record to have been done, and what does not appear there, this court is bound to presume, did not take place. “Whereupon, says judge Black stone, the crier is ordered to call the plaintiff, and if neither he nor any body for him appears, he is 'non-suited — the jurors are discharged — the action is at an end, and the defendant shall recover his costs.” 3 Camm. 376. When jury returned with their verdict, in this case,, & should appear on record that the j was duly called, before the*verdict was render* ^ . . . . . ed, in order to give him an opportunity of being present and electing to receive the verdict, or &y withdrawing submit to a non-suit, which he could have no opportunity of doing if the Verdict can be recorded in his absence, and become final ahd conclusive without* any notification to Ifita, unless the court can presume thát the plaintiff is like the king of England always present id court.
    ; til. It is contended, in the third place, that injustice has been done to the appellant, and that he is'entitled to relief.
    On this point I do not think it necessary to trouble the court with any further remarks. I have not been able to discover any injury which the appellant has sustained, or is likely to sustain.
    But, on the other side, I see a serious and irreparable injury to the appellees, should they he excluded by a final judgment from the further pursuit of their just claims against the
    
      Livermore, in reply.
    The district court erred in not giving to the appellant a judg ment upon thé verdict, and in allowing the plaintiff* to become nou-suit. The defendant is injured thereby, and this court has the power to grant „ ' ' £6il6I*
    The counsel for the appellees maintain», that a plaintiff may be non-suited at any time before final judgment; even after a general verdict for the defendant. The process of reasoning, by which he attempts to establish this doctrine, it rather singular. Such, he says, was the coitti mon law of England, before the statute ¾ Henry 4, ch. 7 ; and such, he adds, must 'be the rulé here, unless we can shew that statute to be in force in Louisiana. I will answer the gentleman in this way : the statute 2 Henry^ i, ch. 7» is as much in force in Louisiana, as the old common law of England.
    When the ordinance for the government of th$ northwestern territory gave to the people of that territory the priviledge of a trial byjury, it wail not intended that this trial should be according to the course of the old common law, as it stood in the earliest age of the English monarchy, but the trial by jury with all its improvements, aa it existed in England, at the period of our inde* pendence in <77®, and in the original states of the union, at the time of the ordinance in 1787*
    In the time of Henry the fourth, the trial by jury differed in many most essential points from the trial by jury of the present day. 4-t that new trials were unknownjand the only mode, by which a party could be relieved against a false verdict, was hy process of attaint against the jury. The effect of this process was, not only to relieve the party, but to render the former jurors infamous; to confiscate their goods, and*to plough up their lands. Will the gen* tteman pretend that these are incidents of the trial by jury, as established by the ordinance of Wf87.
    
    The ordinance was afterwards extended by an act of congress to the territory of Orleans ; and the trial by jury, given by our laws since the territory became a state, must be taken tobe such á mode of trial as had been previously in-* troduced. The right to a trial by jury is given in general terms; but the incidents to ⅛⅛⅞ mode of trial are not enumerated.* Will the the court go back to the ISth, 13th, or 14th centuries^ to ascertain what are thos% incidents? Will it not rather be Considered, that the legislature intended to establish the mode of trial which existed in the United States ?
    . The common law existing in the United States, at the time this country was ceded by France, is not the common law of England ■which existed at the time of William the conqueror. or of the Plaatagenets. It is the com* mon law of England with all its improvements, , „ , _ , to the time of'our revolution. M any oi these improvements have been ingtjoduced by positive statutes: others by iudicial decisions. The • state of society has altogether changed ; and a general amelioration of the laws has kept pace with the improvement in manners. Muchvhas been done by the courts, in applying the general principles of law, to the new questions arising out of a change of manners and an enlarged commerce. But the authority of parliament has been often required, to supply the defect of power in the courts of law. Statutes have, therefore been made to amend the common law ; $nd in all the states in the union, where the common law is in force, these statutes in amendment of that common law are considered as a*part of it* The statute de donis of Edward the first* has never been a favorite in this country ; and yet it has bein considered as law, and all the devices, invented in England for eluding its provisions and docking entails, have been used* and legislative enactments have also been made to facilitate the same purpose. The statute of wills of Henry the eighth, the statute of Elizabeth, against fraudulent conveyances, the statute of uses, the statute Of frauds, the statute of edditioe% the statute of jeofails, &c. &c. have all the force of law in the original states of tBe union, as a part of the common law- . tosté were first given by , the statute of Gloucester. These are merely taken as instances.
    Whatever, then, may have been the rule of the common law previous to the statute of Henry the fourth, I believe the court will have no hesitation in saying, that, at this day, a plaintiff cannot be non-suited after verdict. But, independent of that statute, the plaintiff's were not properly uon-suited iu this case. When this non-suit was entered, the plaintiffs were not de-mandable. Before a verdict is received, the plaintiff maybe non-suited ; but not in the same term afterwards, even by the old common lawf The plaintiff is demandable to hear the verdict, and lie* may prevent the verdict from being received, by voluntarily withdrawing himself, a.nd submitting to a non-suit. But if he suffer the verdict to be received, he is concluded. Bvea according to the old law, it was only where the court gave a day until the next term to consider of tfyeir judgment to be rendered upon the ver» diet, that the plaintiff might then be called and non-suited. This will appear by the au« thorities cited by the counsel for the appellee^ « Upon every continuance or day given over be¿ iudgmeftt,” are the words iff Lurd Cokey quoted' by the gentleman. In the case now before this court, the district court, gave no day to he advised ; but the non-suit, was granted upon the plaintiffs’ own motion immediately after the verdict was reoorded. I will refer the court to some further authorities. “ The plaintiff cannot be non-suited on the same day that he has appeared in court.” 2 Roll. Mr. 131.-B. pi. 1. cites 3 H. 4, 2. Here the plaintiffs were in court to receive- the verdict. u If the defendant wage his law, and the plaintiff impart until another day of the same term, on that day the plaintiff cannot be non-suit. S Roll. Mr. 131. D. pi. 9. cites 3 H. 6, 50. “But otherwise, if tfye impartance be to another term.” ¾ Roll. Mr. 131. 1). pi. 10. cites 3 H. 6, 50.
    That the plaintiffs were in court to hear the Verdict is a presumption of law, which qannot be controverted, when the verdict has been re- * * Corded. It is said that this ought to appear of record. Such is not the practice ; and it is not necessary. It was formerly usual to call the plaintiff, when the jury were about to give in their verdict; but it was done for a very different reason from that stated by the appellees’ counsel. Tidd’s Practice, 796. It is not the practice in Massachusetts or Mew Hampshire j it is in Mew-York and Maryland. It is not the practice here, and it never appears as . , , „ * . - . . part oi the record. But a court will not receive a verdict in the absence of the plaintiff # 5 and his counsel. Therefore* he must be pre-* * sumed to be present when the verdict is re> ceived.
    It is contendéd, in the next place, that this is not a general, but a special verdict, and that a plaintiff may be nonsuited after a special verdict. The gentleman says, that it is a common practice in England, for the plaintiff to be non* suited after á special verdict. He has shewn no case in support of this assumption; and 1 have not been able to And any. We are mere-ly referred to Bacon’s Abridgment, and . we' have merely that to rest upon ; for Bacon'cites no case which supports him. There is no such case. , After the verdict is received and recorded, the plaintiff could not be demanded the same term. It was only in a case, where the court gave a day until the next term to consider’ of their judgment to be rendered upon the spe--cial verdict, that the plaintiff could be non-suited. It is of this case, rather than the case of a general verdict, that Lord Coke speaks j for a judgment upon a general verdict docs not require deliberation. The fact is, that Bacon has inaccurately confounded a non-suit with a discontinuance. A discontinuance is a side-bar , ■ , . - , rule, winch may be granted at any time; but always under the direction of the court. It is necessary to ask leave. Phillips vs. Echard, Cro. Jac, 35.
    The verdict in this case was not however a Special verdict. It was a general verdict. We must not be misled by names ; but consider the substance%of this verdict as connected with the pleadings. In applying the rules of the common law to the trial by jury úk this state, it is necessary that the court should attend* to the distinctions growing out of the different state of pleading. In England, an issue is agreed unon by the parties in pleading, and a jurv is im-lipaunelled to try this issue. In Louisiana, the science of pleading is unknown ; and a cause is submitted to a jury upon the petition and answer, without a replication, and with no precise issue fixed by the pleadings. By an act of the legislature, the parties are entitled to submit facts to be found by the jury; and it is provided that these facts shall be such as naturally arise upon the petition and answer, and that the finding of the jury shall be conclusive. Although, under this system an issue, which 4nust decide the cause, is not technically and formally presented to the jury j yet I conceive that it was substantially done in this case. A general verdict is not necessarily in the terms 0f a genera] issue; hut is properly defined to be «'a finding by the jury, in the terms of the issue, or issues, referred to them.” Tidd’is Practice, 798. Now, in this c'ase, the plaintiffs claimed the land as belonging to the community formerly subsisting between Chedoteau, their ancestor, and his wife ; and they »iledge, that she has sold the land to the defendant* The defendantAnswers, that the land had been legally stdjudicamd to the wife ; and the question is put to the jury, whether there had been such an adjudication. This is an issue agreed^ upon between the parties, and the jury have found it generally for the defendant. If they had found certain facts, and prayed the advice of the court, whether these facts amounted to an adjudication or not, it would have been a special verdict. But they have found the very fact in issue between the parties; and this is a general verdict. •
    I have so far considered this question according to the rules of the common law. It may, however, admit of some doubt, whether the doctrine of nonsuits is necessarily introduced, as an incident to tlie trial by jury. After the verdict is received, the jury have nothing more to do with the cause. It is then before .. , . - . , , ,. . . the court, and the question, whether the plaiu-tiff may be permitted to discontinue, must be decided according to the principles settled in Hunt vs. Morris, 6 Martin, 676. In that case it was decided, that it was discretionary with the court, before whom the cause is pending^. ⅜⅛ permit, or riot, a discontinuance; notan arbitrary discretion, but a sound legal discretion, of the proper exercise of whieh the supreme court may judge. Broussard vs. Trahan’s heirs, 4 Martin, 489. If the doctrine contended for on the part ef the appellees is to be admitted, the consequence will, be that the act of the legislature, under which special facts are submitted to a jury, will give to plaintiffs a most unreasonable advantage ; such an advantage as is given to a party by no other system of laws. A defendant cannot be nonsuited, nor can he discontinue. Any judgment against him must be conclusive. He cannot take the chance of a verdict in his favor from one jury, With the liberty of submitting the eause to another jury, in 'case the decision should be against him. The argument of the court, in the case of Hunt vs. Morris, was very strong against the plaintiff’s right to discontinue after a cause had been submitted to the judge but before a decision; but this easels much stronger. In that case the . . . , „ . . discontinuance was asked tor, upon the plant-tiff’s own conviction that his evidence was id-sufficient, and without taking the chance of any * • . . , . . ~ . . . * decision in his favor. But in this case, the plaintiffs took the chance of the jury finding the issues in their favor; and, if the issues had been found in their favor the defendant would have been concluded thereby. The same course ihay be pursued in any other cause, and* if the argument on the part of the appellees be correct, the plaintiff can in no case suffer, but may deprive the defendant of all the, benefit of a jury trial by submitting facts.
    It is contended, that .the defendant has sustained no injury from this judgment, and the gentleman has brought his wit in aid of his argument, and quoted Cervantes among his other books of authority. The defendant wants no «better bread” than he is entitled to. He wishes to be quieted in his title ; and be finds a serious injury in having a suit hanging over him, and affecting his title to his land, when it ought to have been determined by the verdict of the jury. The defendant may wish to sell this land ; but, so long as his title is disputed by these plaintiffs, he cannot find purchasers.
    If we are to consider this as'a discoutiuuancd ■ granted by the court in the exercise of its cretionary power, we must enquire whether this discretion was properly exercised ? It is found by the jury, that this land was adjudicated to the widow of Chedoteau, that the portions of lue heirs, the plaintiffs in this cause, were paid ‘to them by the widow, according to the price at which the land was estimated; and, also, that one of the plaintiffs was a Witness to the sale to the defendant and did not object. The ver* diet decides the legal title to be ih the defendant, and it, also, decidfes, that the plaintiffs have no equity; for they have received the price of the land. It Only remains to be en-quired, whether the record contains sufficient matter, upon which the court can pronounce a conclusive decree in favor of*the defendant; ktad Whether the cause is properly before the court upon the appeal, so as to enable them to make such a decree. Upon this part of the case, I shall add but little to #hat my colleague has advanced in the opening. Was not the plea, that this land hail been legally adjudicated, to the widow of Chedoteau, aud that she had sold it to the defendant, a complete bar to the plaintiffs action ? Of this there can be no doubt. — * Has not this fact been found in favor of the defendant? ' The finding of a jury is ¡⅜⅛ to b& construed jrith the same strictness as a plea.— jjecausa every oue musj; order his plea accord» jug to the rules of law ; but it is otherwise of a verdict, for that is the saying of laymen. S Saunders’ Rep. 97- Cro. Eliz. 488. 6 Rep; S6. Vaughan, 77- ⅛
    The last question is upon the appeal. If the defendant was entitled to a peremptory judgment in the court below, and ¿hat judgment has not been given to him, but the cause has been suffered to gooff, leaving him exposed to a new action for the same cause, there can be no doubt that an appeal lies. An appeal lies upon interlocutory judgments, when a party would suffer an irreparable injury, if the appeal were not sustained. As in the case stated by Screvola, ff. 49*5, 8; and, as this court has decided, upon the refusal to grant a continuance, Broussard vs. Trahan’s heirs, 4 Martin, 189. Upon all final judgments an appeal lies. And upon all final judgments the party, in whose favor the judgment is rendered, máy appeal, provided the judgment does nht give him the full relief to which he was entitled. In Lynch vs. Postle-ihwaite, the judgment of the district court was in favor of the plaintiff; but this court sustained his appeal, because that judgment did not give Mm full relief, ¿h this casé there cad be no doubt that the judgment of nonsuit was a final judgmeut. It made a final dispnsitiai?' of the cause before the court; hut it did not •' t.' dispose of it in the manner that it should have been disposed of. If the plaintiffs were to bring a new action, it would not be a continuance; the former action, but a new suit. A new cofi* testatio litis must intervene. The judgment in this case was a final judgment. It was not the judgment to which the defendant was entitled, and I have no doubt this court will render that definitive judgment which the law requires upon the finding of the jury.
   Martin, J.

delivered the opinion of the court. The plaintiffs’ counsel contends that the judgment, in this case, was not. appealable from, and that they had a right to demand a nonsuit. These positions are denied by the defendant, who contends that judgment ought to have been rendered for him.

There is not any statement of facts, but the defendant has assigned error on the face of the record.

A judgment of nonsuit may be appealed from ; for it is final, not indeed as to matter in controversy, but as to the suit, to which it puts an end. In the act of 1313 the word final is used in contradistinction with 'the word interlock tory. . Interlocutory judgments may be appeal"ed from, wbcre they work an irreparable iniury: final ones, in every ease where the value of the thing claimed authorises it.

It is contended that the plaintiffs had a right to a nonsuit, because at common law, and until the .statute of Henry IV. plaintiffs could be nonsuited, even after a verdict. Farther, that the statute of that king does not forbid a non-suit after a special verdict.

The plaintiffs urge that the trial by jury came to us from the common law of England, and therefore must be considered according to common law principles, unmodified by any statute, while the defendant argues that the common law must be understood with all the amendments introduced by the statutes passed before the declaration of independence.

The trial by jury caine to us a part of the law of England, both common and statute, which the first English settlers brought over* when they left England. At that time the common law was modified by the statute, so far as to prevent a nonsuit, as a matter of right, after a general verdict at least. It had been so for upwards of two centuries. How far the English statutes posterior to the departure of the flrst set ‘"rs, be in force in the United States, ~ or any of them, is a question which it is unnecessary to determine in the present case.

It appears also unnecessary to inquire whether a nonsuit may be claimed after a special verdict, because we think the finding of the jury a general one.

The plaintiffs claim the land as the property of their ancestor; the general issue is pleaded and the title of the ancestor expressly denied. It then behoved the plaintiffs to establish this title; that was the first point in issue. The jury have found that the land belonged to the plaintiffs’ ancestor. Whether by purchase or descent, or by what title, they have not informed us. They have pronounced on the fact and the law; their verdict is a general one. On the issue of non est factum, a finding that the instrument is the defendant’s act and deed is a general one; yet, it seems to find the facts as particularly as they are in the present instance.

The jury have found that “the widow Cbe-doteau remained the real proprietor of the land, ftt the price of its valuation, at the death of her husband.” without' answering whether she remained so ly adjudication, or the consent of the plaintiffs. In order to arrive at this ©onclusion, the decision of two points of .law must real proprietorship ? have been obtained. ' What constitutes How is it Acquired ? In ©rder, that the court, whose province it was té 7 r solve the questions of law arising on a special finding, might give judgment thereon, the facts must have been known, and they do not ap* pear. As she was not the real proprietor of the whole before the death of her husband, according to the first issue, she could not remain ⅞© after it. We must have understood the jury to have meant that she became the real, i. e. sole proprietor, viz. that she acquired a title to the half which was part of her husband’s estate;; She may have become so> by a purchase at the price of the valuation, as the question was pat to the jury, or it may have been adjudicated to; her at that price : but the jury do not find in which of these modes the land became wholly hers. In the latter case, her right depends on ©any facts, which are not proved and which* the court could not assume from the circumstance of the jury having come to a legal result, which they could not correctly arrive at,. Unless these factá were established. Was there before them satisfactory evidence of the miudri* ty of the heirs, the consent of the family meet-, ing, the approbation of the under tutor, toe. ? ,

We are therefore of opinion that the district court erred in allowing a nonsuit after this general finding.

It remains for us to inquire, whether we may give judgment on this general verdict. We think we cannot. A. general verdict is not conclusive in this court as to the matter of fact; we must pronounce on it after the considerar tioo of the statement of facts.

Was it the duty of the defendant and appd^ lant to have procured one? It is shewn to us that the judgment of the district court contains not any of the reasons, nor the citation of the law on w hich it is grounded. He has therefore % right to have it set aside and demand, as we cannot proceed to judgment, that the cause be remanded to be proceeded on to judgment, since the record does not enable us to pronounce on the merits.

It is, therefore, ordered, adjudged and decreed that the cause be remanded, with directions to the judge to proceed therein as if no judgment of nonsuit had been given; and it is further ordered that the> costs be borne by the plaintiffs and appellees.  