Farr v. Cate

Foster, J. At any time before the plaintiff opens his case to the jury he may become nonsuit, as a matter of right. Judge of Probate v. Abbot, 13 N. H. 21; Caverly v. Jones, 23 N. H. 573; Wright v. Bartlett, 45 N. H. 289; Fulford v. Converse, 54 N. H. 543; Parker v. Burns, 57 N. H. 602; Haskell v. Whitney, 12 Mass. 47; West v. Furbish, 5 Reporter 235. It is enacted by U. S. Gen. St., s. 5047, that the assignee in bankruptcy may defend any suit in which the bankrupt is a party defendant, in the same manner and with the like effect as it might have been defended by the bankrupt. The assignee’s appearance being immaterial on the question of the plaintiff’s right to become nonsuit, the motion that the assignee have leave to appear is denied. The plaintiff’s right to become nonsuit cannot be affected by the assignee’s appearance, or by the lien on costs claimed by the defendant’s counsel. The matter of costs was within the discretion of the court at the trial term. Exception overruled. Stanley, J., did not sit.