(D) At what time a Nonsuit may be. same, down to the time of the verdict given in the cause, or to some preceding day to be specially mentioned therein, and the jury on the trial, finding for the plaintiff, shall in such case give their verdict upon the whole matter, both as to the recovery of the whole or any part of the premises, and also as to the amount of the damages to be paid for such mesne profits. Provided always, that nothing therein contained shall be construed to bar any such landlord from bringing an action of trespass for the mense profits which shall accrue from the verdict, or the day so specified therein, down to the day of the delivery of possession of the premises recovered in the ejectment. 1 G. 4, c. 87, Tidd's Prac. 918, (8th edit.) The Circuit Court of the United States has no authority whatever to order a peremptory nonsuit against the will of the plaintiff. This point has been repeatedly settled by the Supreme Court, and is not now open for controversy. Crane v. The Lessee of Morris, 6 Pet. 598. (D) At what time a Nonsuit may be. Ar the common law, upon every continuance or day given over before judgment, the plaintiff was demandable, and upon his non-appearance might have been nonsuit. Co. Lit. 139 b. That at common law, if he did not like the damages given by the jury, he might be nonsuit. 5 Mod. 208. But now by the 2 H. 4, c. 7, it is enacted in the words following:"Whereas, upon verdict found before any justice in assize of novel disseisin, mort d'ancestor, or any other action whatsoever, the parties before this time have been adjourned upon difficulty in law, upon the matter so found; it is ordained and established, that if the verdict pass against the plaintiff, that the plaintiff shall not be nonsuited." But notwithstanding this statute it hath been held, that the plaintiff may be nonsuited after a special verdict, or after a demurrer and (a) argument thereupon. Co. Lit. 139; 2 Jon. 1; 2 Roll. Abr. 131, 132; 3 Leon. 28; and vide 2 Hawk. P. C. c. 23, § 95. (a) In debt upon an obligation, upon demurrer, the case being argued, the opinion of the court was against the plaintiff, and rule given, that judgment should be entered for the defendant; and the plaintiff prayed that he might be nonsuited; and because he had the same term appeared, and argued by his counsel, and had prayed judgment, he could not be nonsuited the same term. Cro. Ja. 35. If there be judgment to account, and auditors assigned, and thereupon a capias ad computandum, the plaintiff cannot be nonsuited on the original, because the original is determined by the judgment to account. 2 Roll. Abr. 131. Vide Co. Lit. 139 b. If the defendant wages his law, and a day is given him over to another term to make his law, if the plaintiff does not appear that day he will be nonsuited otherwise, if he wages his law immediately, or, as some hold, on a day in the same term. 3 H. 6, 13; 2 Roll. Abr. 131. After a plea of tender it is said plaintiff cannot be nonsuited; (b) but it is the practice to nonsuit him if he cannot make out his case after paying money into court.(c) (b) 1 Camp. 327, but see notes. (c) Tidd. 675, (8th ed.,) and cases there cited. Where a cause is undefended at nisi prius, and the judge directs a non (E) How far the Nonsuit of one shall be the Nonsuit of another. suit, with liberty to the plaintiff to move to enter a verdict, the court may order a verdict to be entered accordingly for the plaintiff. 4 Barn. & A. 413. When a cause is carried down by proviso, and the plaintiff does not appear at the trial, he should be nonsuited: but where a verdict in such case was taken for the defendants by mistake, instead of a nonsuit, the court, though this was irregular, would not permit the plaintiff to set it aside, unless he would consent to a nonsuit being entered. 1 Barn. & C. 110; and see Ibid. 94.|| A nonsuit cannot be ordered at a trial without the plaintiff's consent. Doe v. Grimes, 1 Pet. 469; De Wolf v. Rabaud, 1 Pet. 476; Mitchell v. The New England Mar. Ins. Co., 6 Pick. 117. The plaintiff may become nonsuit, as of right, at any time before trial,(a) or before verdict.(b) (a) Haskell v. Whitney, 12 Mass. 47. (b) M'Naughton's ex'rs v. Mosely, 1 Hay. R. 331. But after verdict (c) or after the cause has been opened, (d) he cannot become nonsuit but by leave of court. And a nonsuit will be ordered only for the deficiency of the evidence on the part of the plaintiff.(e) (c) Locke v. Word, 16 Mass. 317; Hendrick v. Stewart, 1 Tenn. 476. (d) 12 Mass. 47; 16 Mass. 317. (e) Rose v. Learned, 14 Mass. 154. (E) How far the Nonsuit of one shall be the Nonsuit of another. In real or mixed actions, the nonsuit of one demandant is not the nonsuit of both; but he that makes default shall be summoned and severed: but regularly, in personal actions, the nonsuit of the one is the nonsuit of both. Co. Lit. 139; 2 Inst. 563; 2 Roll. Abr. 132. Several cases to this purpose. But in personal actions, brought by executors, there shall be summons and service, because the best shall be taken for the benefit of the dead; and so it is in action of trespass by them, as executors, for goods taken out of their own possession. Like law in account by them, as executors, by the receipt of their own hands. Co. Lit. 139 a. Vide head of Executors. In an (g) audita querela concerning the personalty, the nonsuit of the one is not the nonsuit of the other; because it goeth by way of discharge, and freeing themselves, and therefore the default of the one shall not hurt the other. Co. Lit. 139. (g) In an audita querela, scire facias, attaint, the nonsuit of one shall not prejudice the other. 6 Co. 26. In a quid juris clamat the nonsuit of the one is the nonsuit of both, because the tenant cannot attorn according to the grant. Co. Lit. 139 a. Some actions follow the nature of those actions whereupon they are grounded; as, the writs of error, attaint, scire facias, and the like. If a real action be brought by several præcipes against two or more, if the demandant be nonsuit against one, he is nonsuit against (h) all; for, as to the demandant, it is but one writ under one teste. Co. Lit. 139 a, b; 2 Roll. Abr. 133. (h) But where a plaintiff may enter a nolle prosequi against one, and have judgment against the rest, vide 2 Roll. Abr. 101; Cro. Car. 239, 243; Hob. 70, 180; Carth. 19; 3 Mod. 101. In an appeal against divers, whether they plead the same or several (G) Of the Effect of a Nonsuit. issues, it hath been adjudged, that a nonsuit against one, at the trial of any one of the issues, is a nonsuit as to all, because such a nonsuit operates in nature of a release to the whole. Cro. Eliz. 460, pl. 6; Dyer, 120; 2 Roll. Abr. 133; Sid. 387. A latitat was sued out against four defendants in trespass, the plaintiff was nonsuit for (a) want of a declaration, and the defendants' attorney entered four nonsuits against him; and it was held to be irregular, because the trespass is joint; and though the plaintiff may count severally against the defendants, yet it remains joint till it is severed by the count. • 2 Salk. 455, pl. 1; Comyns, 74. (a) There is a nonsuit before appearance at the return of the writ, or after appearance at some day of continuance. Co. Lit. 138 b. [In trespass against several, if any of them suffer judgment by default, the plaintiff cannot be nonsuited. Harris v. Butterley, Cowp. 483.] And the rule is the same in assumpsit. Hannay v. Smith, 3 Term R. 662.|| (F) How far a Nonsuit for Part of the Thing in Demand shall be a Nonsuit for the Whole. Ir is laid down as a general rule, that a nonsuit for part is a nonsuit for the whole. But it hath been held, that if a defendant plead to one part, and thereupon issue be joined, and demur to the other, the plaintiff may nonsuit as to one part, and proceed for the other. 2 Leon. 177; Hob. 180. Vide 10 East, 366, acc.] be If in debt the defendant acknowledges the action as to part, and joins issue as to the residue, and the plaintiff hath judgment for that which is so confessed, but there is a cessat executio, by reason of the damages to be assessed by the jury; if the plaintiff be nonsuited in this issue, this shall not be a nonsuit for the damages to be given, because that he had judgment. 2 Roll. Abr. 134. If in trover for divers goods the defendant pleads, that as to some of the goods they were fixed to his freehold, as to others that he had them of the gift of the plaintiff, and as to the rest not guilty; and as to the first, the plaintiff enters non vult ulterius prosequi; this amounts only to a retraxit, and is no nonsuit, so as to bar the plaintiff from proceeding on the other parts of the plea, on the rule, that a nonsuit for part is a nonsuit for the whole. 2 Leon. 177, Sir John Sands v. Packsal Brocas. (G) Of the Effect of a Nonsuit: And herein of its being a peremptory Bar. A NONSUIT, as hath been observed, is regularly no peremptory bar; but the plaintiff may, notwithstanding, commence any new action of the same or like nature. But this general rule hath the following exceptions: 1. It is peremptory in a quare impedit; and in that action a discontinuance is also peremptory; and the reason is, for that the defendant had, by judgment of the court, a writ to the bishop; and the incumbent, that cometh in by that writ, shall never be removed; which is a flat bar to that presentation. Co. Lit. 139 a. 2. Nonsuit in an appeal of murder, rape, robbery, &c., after (b) appear (H) Of setting aside a Nonsuit. ance, is peremptory, and this in favorem vitæ. (c) But the nonsuit of the plaintiff in an appeal is not such an acquittal, on which the defendant shall recover damages against the abettors, by West. 2, c. 12, unless after the nonsuit he were arraigned at the king's suit upon the appeal, and acquitted. Co Lit. 139 a. (b) But the bare taking out of a writ of appeal, and causing it to be delivered of record to the sheriff, and a nonsuit upon it, is no bar of a second appeal; because it doth not appear of record, but that it might be done by a stranger; and therefore the nonsuit must be after an appearance in proper person of record. 2 Hawk. P. C. c. 23, § 181. (c) 2 Inst. 385. 3. So, if the plaintiff, in an appeal of mayhem, be nonsuit after appearance, it is peremptory; for the words herein are felconicè mayhemavit. Co. Lit. 139 a. 4. A nonsuit after appearance is also peremptory in a nativo habendo, and the nonsuit of one plaintiff in that action nonsuits both in favorem libertatis. But in a libertate probanda such nonsuit is not peremptory; neither is the nonsuit of one plaintiff the nonsuit of both. Cro. Lit. 139 a; Cro Eliz. 881. 5. Such nonsuit is also peremptory in an attaint, but a discontinuance in an attaint is not, because there is a judgment given upon the nonsuit, but not upon the discontinuance. Co. Lit. 139 a. A decision of the court in favour of the defendant, upon an agreed statement of facts, and a nonsuit of the plaintiff entered, and judgment thereon for the defendant for his costs, pursuant to such agreement, constitute no bar to a subsequent action for the same cause. Knox v. Waldoborough, 5 Greenl. 185. A judgment of nonsuit in the county court, for non-compliance with an interlocutory order of the court, is not a sentence or judgment, nor does it import a trial, within the statute relating to appeals. Hoyt v. Brokos, 10 Conn. 188. A plaintiff at law went to trial in a case where he might have sued in equity, and a verdict by surprise was rendered against him, which he might have prevented by suffering a nonsuit. He was not permitted afterwards to resort to a court of equity. Tarpley's admr. v. Dobyns, 1 Wash. 185. (H) Of setting aside a Nonsuit. A nonsuit cannot be set aside without laying some ground, by affidavit or otherwise, upon which the court can proceed. Dearing v. Taylor, 1 Tenn. 49. The necessary absence of the plaintiff's attorney is sufficient ground for setting aside a nonsuit. Williams v. King, 1 Tenn. 185. A nonsuit cannot be set aside by consent of parties without consent of the court. M Pherson v. Hynds, 1 Tenn. 197.g 223 NUISANCES. A COMMON nuisance is an offence against the public, either by doing a thing which tends to the annoyance of all the king's subjects, or by neglecting to do a thing which the common good requires. 2 Roll. Abr. 83; Hawk. P. C. c. 75. Under which description we shall consider, (A) What shall be said a Nuisance: ||And herein of unlicensed Players, and illegal Joint Stock Companies. (B) How far the Indictment must charge it to be an Annoyance to all the King's Subjects. (C) How a Nuisance is to be removed or abated. (D) How the Offence is punishable. (E) When an action will lie for a Nuisance. For Nuisances relating to the Highways, vide title "HIGHWAYS." For those relating to Bridges, tit. "BRIDGES." For those relating to Public-houses, tit. "INNS AND INNKEEPERS." (A) What shall be said a Nuisance: And herein of unlicensed Players, and illegal Joint Stock Companies.] Ir is clearly agreed, that keeping a bawdy-house is a common nuisance, as it endangers the public peace, by drawing together dissolute and debauched persons; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness. Showing 3 Inst. 205; Kitchen, 11; Hawk. P. C. c. 75, § 6; 2 Burr. Rep. 1232. or exhibiting stud horses in a town, is a nuisance. Nolin v. Mayor, &c., of Franklin, 4 Yerger, 163.g Also it hath been adjudged, that this is such an offence of which a feme covert may be guilty as well as if she were sole; and that she, together with her husband, may be indicted and condemned to the pillory for keeping a bawdy-house; for the keeping the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband: and in this she is presumed to have a considerable part, as those matters are usually managed by the intrigues of her sex. Salk. 348, pl. 35, The Queen v. Williams. It is clearly agreed, that all common gaming-houses are nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices, and incite to idleness, and avaricious ways of gaining property, great numbers, whose time might otherwise be employed for the general good of the community. Also, it hath been (a) adjudged, that this is such an offence for which a feme covert may be indicted; for |