Dannelly v. Speer

[228] By the Court. — Nisbet, J. [1.] If aplaintiff dismissesliis action there is no case in Court— nothing upon which our judgment could operate, if we should hold that there is error; and if we should affirm, so far as the case is concerned, it would be supererogatory. The plaintiff could have excepted to the opinions when given by the Court below, which he says constrained him to dismiss, and gone on to trial. He could have appealed and excepted on the appeal. A writ of error will not lie from a voluntary nonsuit. Union Bank vs. Carr, 2 Humph. 345. 3 How. Miss. 332. Trice vs. Smith, 6 Yerg. 319. Howell vs. Pitman, 5 Miss. 246. Atkinson vs. Lane, 7 Miss. 403. Kelvy vs. Ross, 6 Blackf. 536. Vestall vs. Burditt, 6 Blackf. 555. Note. — See ante, Mott vs. Hill’s adm’r, p. 79, — [Rep.]