
    Elisha Williams vs. William Rearrs and Samuel M. Cummings. et. al.
    
    Where judgment is obtained against one of several defendants, the plaintiff can not be nonsuited.
    In this case, which was a motion to set aside a nonsuit¿ several important points where brought up by Mr. Haynes-worth the appellants counsel, but the court set aside the non-suit on the ground, that where there are two defendants, against one of whom there is a judgment by default, the other defendant cannot nonsuit the plaintiff.
   Judge Colcocii.

“ The plaintiff having obtained judgment against one defendant cannot be nonsuited by the other. By being nonsuited, he is turned out of court with costs. His suit is at an end. It involves an absurdity to say, because one defendant has a good defence, that a plaintiff shall not be permitted to recover against another who acknowledges the debt.

It may be a good reason why a verdict should be found for him who has the defence, and he be dismissed with his costs. It seems, however, that the question has been raised on former occasions, and more than once determined.

In 1 Setton 4C4 it is laid down, that where there is a judgment by default against one defendant in a joint action, the other cannot nonsuit the plaintiff at the trial, on issue joined by him. And this is supported by the authority of Ld. Mansfield in the case of Weller vs. Gayton & Walker, (1 Burrow 358,) in which he s.ays “ifhe (plaintiff) is non-suited he will be out of court as against both defendants, which cannot be, having a judgment against one.” And Mr. Justice Denison who concured, referred to a case of Greaves vs. Roll . Newell in 2 Salk. 456; and in a note to the case reference is made to 12 Modern 651, and 4 Ld Raymond 716.

The question then appears to be well settled and the motion is granted.” 
      
       By the English Common Law, a plaintiff could not be nonsuited against his will. It was a proceeding.of his own seeking. (See Aylett vs. Lowe, 2 Wm. Black Rep. 1221. M'Beath vs. Haldimand, 1 D. and E. 176. Watkins vs. Towers, 2 D. and E. 281.) But in this state, it is a right which the defendant can claim of the court against the plaintiff, if at the end of the plaintiffs testimony he has not made out his right to recover, either from defect in evidence or law. In the case of Lovell vs. Parler, brought up by the writer of this note, a motion was made to set aside a nonsuit, which the plaintiff had objected to, claiminga right to go to the jury; but the Appeal Com t. stopped the counsel, and said it had always been (he law in this state that the plaintiff might be nonsuited against his will, though ha appeared and objected to it, claiming the right to go to the jury..
     