
    Partlow vs. Elliott.
    Practice. Non suit — -nolle prosequi — 1801, c. 6, § 58. The terms non suit and nolle proseguí have long been confounded in Tennessee, and used as convertible. Since the act of 1801, c. 6, § 58t providing — “that every person desirous of suffering a non-suit on atrial at law» shall be barred therefrom, unless he do so before the jury retire from the bar” — the motion to take a non-suit, when made by a plaintiff, is equivalent to the motion to enter a nolle prosequi; and it is error to refuse the motion, though made after the evidence hasbeen heard by the jury, and they have been charged by the court. Wherever at common law, the plaintiff could enter a. nolle prosequi, he may, by our practice, underthe act of 1801, enter a non suit. See Lee’s Dictionary of Practice — JYolle Prosequi.
    
    On the 27th of February, 1835, James Elliott executed to Jahn Ray, his bill single at thirteen months after date, for 1850 dollars, — and his promissory note at twelve months for 2000 dollars. These Ray assigned by endorsement to John A Partlow on the 2nd of March afterwards.
    On the 20th of April, 1837, Partlow brought debt against Elliott in Wayne circuit court; and declared in one count upon the bill, and in a second upon the promissory note. To the first count Elliot pleaded non assignavit, and to the second, nil debt, and two special pleas to the effect, that the promissory note had been obtained by Ray, Partlow and others, by means of fraud and misrepresentation, and without consideration. And upon all of the pleas issues were joined.
    On the trial at March Term, 1838, before his Honor Judge Totten and a jury of Wayne, after all the evidence had been heard, and the Judge had charged the jury, and they were about to retire from the bar to consider of their verdict, the plaintiff, by bis attorney, moved the court to enter a non suit as to the second count. But the court over-ruled the motion, and the plaintiff excepted to the opinion over-ruling it, and a bill of exceptions stating the facts was tendered and signed.
    The jury found a verdict for the plaintiff upon the first count, and for the defendant on the second count. The plaintiff moved for a new trial, which the court refused, and gave judgment that he “recover of the defendant the debt and damages assessed by the jury,” costs, &c. From which judgment the plaintiff appealed in error.
    
      January 28.
    James Campbell for the plaintiff in error.
    Nicholson, for the defendant in error,
    said — It is insisted for the plaintiff that he had a right to enter a non suit, and that the court below erred in refusing his motion.
    Judgment of non suit can be entered only at the instance of a defendant, and the obvious reason is, that the plaintiff is always supposed to be absent when such judgment is entered. Arnold ts. Johnson, 1 Stra. 267; 1 Saund. R. 185 d. n. The manner of entering judgment of non suit shows clearly that in legal contemplation the plaintiff is absent: “Upon which the said A. being solemnly called, doth not come, nor further prosecute his hill against the said B.; therefore,” &c. 2 Lilly, 508. It would be an absurdity to state upon the record that the plaintiff came into court and moved to have himself called, and upon his failing to come, that judgment of non suit was entered. Yet this was the absurdity presented by the motion of Partlow in the court below.
    But, notwithstanding the rule that the motion for non suit must proceed from the defendant, yet it is admitted that the court cannot order a non suit to be entered against the consent of the plaintiff. 2 T. R. 281; If he be really absent, he is supposed to be voluntarily so; and if he be present, he is supposed to consent to the motion of the defendant to’ enter a non suit. Still a motion by a plaintiff to enter a non suit is wholly unknown in the practice of courts.
    If it be true that a plaintiff cannot move for a judgment of non suit, it follows that he could not move for non suit, as to part and proceed to trial as to part.
    But whether this position is true or not, it is insisted that a non suit to part is necessarily a non suit to all. .Even if a defendant move for judgment of non suit as to part, and the plaintiff consent, it operates as a non suit to all. This consequence follows necessarily from the very nature of the non suit, and is laid down in so many words. 5 Bac. 145.
    In a case in 3 Hawk, 228, the right of a plaintiff to enter a non suit is fully discussed. In that case the plaintiff had gone into court, and suffered a non suit to be entered, and the record so represented it. He then appealed to the supreme court, and the court there decided that a plaintiff cannot move for non suit, but as the record showed that the entry was made at the instance of the plaintiff, that they would construe it to be a retraxit, and upon that construction decide the case. A retraxit is an open abandonment of his suit by a plaintiff, and operates as a bar to any future action. 3 Blk.
    February 4.
    
    In the present case the court will construe the motion of the plaintiff to have been a reiraxit, and although the court below may have erred in not sustaining the motion, yet as the retraxit would have been a bar to another action, he has suffered no injury by that refusal, and such error will bé no cause for reversal. The record shows that he had special notice of the defence relied upon — he was not taken by surprise, but took the benefit of all the proof, and the charge of the court, and then claimed the right to enter a non suit. The motion made under the circumstances, by whatever name called, will be regarded as a reiraxit, and the refusal of the court to allow it was not such error as would entitle the plaintiff to a new trial.
   Turley, J.

delivered the opinion of the court.

This is an action of debt brought by the plaintiff against the defendant, to recover payment of two debts, one for $¡1850, due by a bill single executed to John Ray, and by him assigned to the plaintiff; the other for $2000, due by a promissory note, also executed to John Ray, and by him assigned to the plaintiff.

The declaration contains two counts, the first upon the bill single, and the other upon the promissory note. On the trial, after the testimony had been closed, and the jury charged, but before they had retired from the bar of the court to render their verdict, the plaintiff moved the court for leave to enter a non suit on the second count of his declaration, which the court refused to permit. The jury returned a verdict for the plaintiff on the first count, and against him on the second, and judgment was given accordingly. To reverse which, so far as it applies to the second count of the declaration, this writ of error is prosecuted.

That the plaintiff, by the principles of the common law, had no right to ask leave of the court to enter a non suit, is tin-questionably true, for the very principle upon which a non suit is founded, supposes an absence and default in the plaintiff, and that he does not pursue and follow his remedy as he ought. 3 Black. Com. 296, 316, 376; therefore the motion for a non suit had to come from the defendant. If the plaintiff wished to stay his suit, it had to be done either by a nolle prosequi or a retraxit. That the plaintiff was entitled to enter a nolle psosegui upon the second count of his declaration, and thereby prevent a verdict and judgment thereon, is conceded; but it is said, that inasmuch as he applied for leave to enter a non suit, and not a nolle prosequi, the court did right in refusing to permit it.

The words non suit and nolle prosequi being technical terms, and both alike operating to put the plaintiffs out of court, are very liable to be confounded by some thinkers, and in the hurry and confusion of business. Therefore it would be the duty of the court, under such circumstances, always to inform the person making a wrong application, of the right. But without basing any argument upon this remark, it is sufficient for us to observe, that these terms havje been so long confounded in the State of Tennessee, as to produce a practice entirely different from that of the common law; by which a plaintiff may, at his own suggestion, unmoved by the operation of the defendant or court, take a non suit, and which cannot be denied him. This practice has been recognised by the act of 1801, c 6, § 58, which provides — “that every person desirous of suffering a non suit on trial at law,- shall be barred therefrom, unless he do so before the jury retire from the bar.”

To unsettle a practice thus recognized, and of such long standing, might be productive of much mischief; and we can see no reason for doing so. It can make no difference whether you call it a non suit or nolle prosequi. When taken by the plaintiff it operates as a nolle prosequi, when by the defen» dants, a non suit; and results in a dispute about names.

But it is said that a non suit as to part is a nonsuit as to the whole, and, therefore, the plaintiff had no right to have a partial non suit of his case.

If the plaintiff be non suited by the defendant, or by order of the court, as at common law, his whole case is gone; but when we say that the plaintiff may himself take a non suit, and that it operates as a nolle psosequi, it necessarily follows, that under such circumstances it must be governed by the same principles which are applicable to a nolle prosequi. If then the plaintiff can enter a nolle prosequi as to one count of his declaration, and proceed on the others, which he most unquestionably can, he can also do the same by a non suit. We are, therefore, of the opinion, that the plaintiff ought to have been allowed to enter a non suit on the second count of his declaration, and that it was error in the court to refuse leave.

The judgment will therefore be reversed; and we, proceeding to give such judgment as the court below should have given, direct that a non suit be entered upon the second count, and a judgment final for the plaintiff upon the first count; and that the defendant in error pay the cost both of this court, and the court below.-  