
    Moses Gorgerat et al. against William M’Carty.
    S. C. 2 Dall. 144.
    A judgment entered by way of security, admits nothing, but the plaintiffs on a trial must prove tbeir case as laid.
    A nonsuit for want of testimony on the part of the plaintiff cannot be taken off. The mistake of the party or his counsel, is no ground for a new trial.
    This action was brought on three bills of exchange, against the defendant as acceptor. Pleas non assumpsit and payment, and a discharge by the bankrupt laws of France. Replication, non solvit, no discharge and issues.
    On the 14th April 1790, by agreement filed, judgment was confessed by the defendant to the plaintiffs, with a stay of execution until twelve days next before the first day of next term; agreed also, that the defendant be at liberty to have a trial under the judgment, whether anything, and how much may be due, by the general jury.
    On the 13th July 1790, the cause was tried accordingly, and the jury gave a verdict for the plaintiffs for 911I. 13s. 3d. damages, with six pence costs, subject to the opinion of the court on a point reserved and filed in writing.
    This point was argued by counsel in September term I79r, and in the succeeding term the court pronounced their judgment in favour of the defendant. On the 16th January 1792, judgment was entered for the defendant nisi, and on the 19th January 1792, plaintiff moved for a rule to shew cause why a new trial should not be had.
    It was now argued on the part of the plaintiffs, that they were led to believe, that the defence to be set up was the bankruptcy *of the defendant in France, and had come to trial fully prepared on that point; and that they were misled by the incorrect report of the case of Morris v. Foreman in Dallas, 193, that the possession of a bill of exchange is evidence of an authority to demand payment of its contents. Hence they had not come prepared to prove their taking up the bill from the last indorsees and paying them the money. They conceived their case to be similar to the execution of a writ of inquiry at bar, under the agreement entered into; and on writs of inquiry, less evidence will suffice than in other trials. After a judgment by default, a promissory note set out in the declaration, need not be proved. 2 Stra. 1149. Plaintiff was surprised with a defence on executing a writ of inquiry, and was not prepared to prove his whole demand, the court set it aside on payment of costs. 1 Stra. 515. S. P. 2 Stra. 1149.
    . They insisted moreover, that the judgment entered by agreement precluded them bringing a new action. There cannot be a nonsuit after the plaintiff has obtained a judgment, and cited 2 Rol. Abr. 134. pi. 1, 2, that a nonsuit is inconsistent with a judgment.
   By the court:

We all know that it is usual at the bar to enter judgments in order to bind lands, or for the purpose of proceeding to charge the special bail, and under these, judgments to try or refer the suits. In many instances, after such judgments entered for the plaintiffs, verdicts, reports of referees and judgments for the defendants have succeeded. The special agreement to enter judgment, admits nothing; but the defendant expressly reserves to himself a liberty to try by the general jury, whether any thing or how much is due to the plaintiffs. Notwithstanding therefore this first judgment, entered by way of security, the plaintiffs were bound to prove their case as laid in the declaration; and their failure herein cannot be imputed to surprize. We know of no case in the books, where a nonsuit entered for want of testimony on the part of the plaintiff at the trial, has been taken off; nor do we apprehend the mistake of the party or his counsel to be a ground for a new trial. (Vide Fitzgib. 40. 1 Wils. 98. New trial not gran table because party had failed'to give other evidence to the jury through his own or counsel’s mistake.)

Messrs. Rawle and Du Ponceau, pro quer.

Messrs. Ingersoll and Lewis, pro def.

It is material then to consider what would have been the event, in case the point reserved had been determined by the court at the trial. It necessarily must have been a nonsuit or verdict for the defendant, and he is entitled now to either the one or the other. The case is a hard one on the part of the * plaintiffs; but we cannot innovate so far as to take off r^r-the nonsuit, in. order to let the plaintiffs into a new L trial.

Motion for a new trial refused, and judgment for the defendant in nature of a nonsuit.  