Lyon v. Adams

Bt the Court. The only question arising in the present case is in reference to the right of the plaintiff in book account to become nonsuit in the action, after the case goes before the auditor. The general rule of practice in regard to actions, triable by jury, is to allow the party, as matter of right, to enter a non-suit, at any time, before the verdict. But that rule does not apply to the action of book account, after judgment to account. The statute, by providing, that when either party, upon due notice, neglects to appear, the auditor may proceed to audit and adjust the account ex parte, seems to imply pretty clearly, that the plaintiff can no more withdraw from the case and become nonsuit, than in common law actions he can, after judgment upon demurrer, or by default, or nil decit, in his favor. And in such cases it is not matter of right for the plaintiff to become nonsuit. The case after judgment to account is under the control of the court, like a case referred, by consent of parties, under a rule of the court. The plaintiff is not at liberty to become nonsuit. What would be the effect upon the plaintiff’s account, where he never presents it before the auditor, or having presented it, withdraws it, we are not called upon to decide. We see no reason to doubt, however, that where the account of the plaintiff is only brought to the knowledge of the auditor, or justice, by the defendant, as in the case decided by this court, in this county, and cited in argument, it could not bar the claim. Judgment affirmed.