Moore v. Herndon

THE plaintiff having introduced his testimony was called, on the defendant’s motion, and nonsuited. It appeared that when the plaintiff was called, he was in Court and did not answer. Held, that the nonsuit was with the implied consent of the plaintiff, and that he was not entitled to a writ of error (1). Footnotes [(1)] In a case where the plaintiff had submitted to a nonsuit, it was held that a writ of error in his favour would not lie. Evans v. Phillips, 4 Wheat. 73. But if a plaintiff be nonsuited against his consent, he may have a writ of error. Strother v. Hutchinson, 4 Bingh. 83. See, also, Pollard v. Buttery, Vol. 3 of these Rep. 239.