Inhabitants on Truro v. Atkins

Gray, C. J. A plaintiff has the right to become nonsuit at any time before trial, but after the trial has been begun, he cannot become nonsuit, except by the leave and at the discretion of the court. Shaw v. Boland, 15 Gray, 571. In the present case, the trial having been begun, and the question of law reserved at the trial being still undisposed of, the ruling by which the demandant was allowed to become nonsuit as of right and of course, against the objection of the tenant, and without any exercise of discretion on the part of the court, was erroneous. In Lowell v. Merrimack Manuf. Co. 11 Gray, 382, cited for the demandant, the case had been submitted to, and judgment rendered by, the court below upon an agreed statement of facts; the case had been brought to this court by appeal, which vacated that judgment; and the nonsuit was allowed by this court on motion, and before the opening of the case here. Whether the Superior Court can allow a plaintiff to become nonsuit, after a question of law has been reserved on report for [419] the opinion of this court, and before that question has been disposed of by t.iis court, either by deciding the question, or by dismissing the report, is not presented by these exceptions, and we therefore express no opinion upon it. Exceptions sustained, and nonsuit stricken off.