Howes v. Austin

Mr. Chief Justice Walker delivered the opinion of the Court: The plaintiff was called and defaulted, for want of a replication to defendant’s plea to the first and second counts of the declaration. The plaintiff had failed to reply within the time required by a rule of the court. A judgment was entered that the defendant, as to those counts, go hence without day. This presents the question as to the effect of this judgment. It is contended by plaintiff in error, that this judgment is a bar to a future recovery on the cause of action described in those counts, whether in the same or a different action. Sir William Blackstone, in his commentaries, says, “that when the plaintiff neglects to deliver a declaration for two terms after the defendant appears, or is guilty of other delays or defaults against the rules of law, in any subsequent stage of the action, he is adjudged not to follow or pursue his remedy as he ought to do, and thereupon a nonsuit or non prosequiter is entered; and he is said to be nonprossed. 3 Blk. Com. 296. The defendant in error was then nonprossed as to the first and second counts of his declaration by this default.” Archbold, in his Treatise on Practice, vol. 2, p. 229, says, a judgment of nonpros, is final for costs only. In Tidd’s Practice it is said, “if the plaintiff do not reply, sur-rejoin, or sur-rebut within the time limited by the rule or order, for further time, the defendant may sign judgment of nonpros. He says such a judgment is final, on which the defendant may tax his costs and take out execution. If, as Blackstone says, it is a judgment of nonsuit, or, as Archbold says, it is a final judgment for costs only, there can be no pretense that it operates to bar a future recovery in that or any other action. Its only effect is to turn the plaintiff out of the court, on the cause of action non prossed, leaving him at liberty to proceed for its recovery precisely as though the declaration or count non prossed had never been filed. It will also be found that the practice sanctions the right to take such a judgment as to a part of the cause of action, instead of the whole declaration. Dardsley v. Cook, 4 Barn. and Cress. 292. It then follows that the default, in not replying to the plea in this case, was well taken to those counts, and that it did not create a bar to a recovery under the common counts, upon the check described in the first and second counts. It was admissible under the common counts, and there was no error in permitting it to be read to the jury. If this had been a non pros, of a part of an entire cause of action, we are not prepared to say, that the result would not have been different as to that cause, especially if it was indivisible in its character; but that question is not now before us for decision. The questions of diligence, in presenting the check for payment, and whether loss resulted from failing to do so at an earlier period, as well as its legal effect, were all fairly presented to the jury by the instructions. The evidence warranted the verdict. Nor do we on this record discover any error for which the judgment should be reversed. It is, therefore, affirmed. Judgment affirmed.