#### Richard C. Ross, *et*al., Appellants, *v.*The City of Chicago.

APPEAL FROM COOK.

A plaintiff has no right to a nonsuit after a case has been submitted to a jury.

This was an action of covenant, brought by the City of Chicago on a bond given by Ross, who had been elected Marshal of the City of Chicago, as principal, and the other defendants as his sureties. The declaration alleged a breach of the covenant, in two several counts. Several pleas were filed, upon which issue was joined. At the November term, 1849, of the Cook Circuit Court, the cause was tried *before*H. T. Dickey, Judge, and a jury; when all of the issues were found for the defendants, and a judgment was entered, that the defendants do have and recover of the said plaintiff their costs and charges, by them about their defense in this behalf expended, and have execution therefor. A motion for a new trial was made, and overruled. A motion was subsequently made by the plaintiff, to set aside the verdict of the jury entered in the cause, and for leave to submit to a nonsuit; which motion was sustained by the Court. To this decision the defendants in the Circuit Court excepted, and prayed this appeal. The errors assigned, complain of the decision of the Circuit Court in setting aside the verdict after judgment, to enable the plaintiff to submit to a nonsuit.

N. B. Judd and Mahniere *&*Meeker, for Appellants, made the following points:

The 29th section of the Revised Laws of 1845, entitled Practice, provides: That every person desirous of suffering a nonsuit *369on trial, shall be *barred therefrom,*unless he do so before the jury retire from the bar.

The power of the Judge to grant new trials is a discretionary one, growing out of some injustice done by the jury on the merits, and is never granted except in the plainest cases. That no injustice was done in this case, is manifest from the fact, that a new trial was refused on the merits.

This judgment involves a palpable evasion of the statute, and in effect a repeal of it; since, if a nonsuit may be obtained after verdict, in a case where a party should have suffered nonsuit before the jury retired, then he is not barred as the statute declares he shall be.

Chickerisg- & Lull for Appellee.

Courts at their discretion may allow a nonsuit, "where a plaintiff cannot claim it as a right. Haskell *v.*Whitney, 12 Mass. Reports, 47; Lock *v.*Wood, 16 *ibid,*307.

The Practice act is confined to proceedings *uon trial;”*that is, that the plaintiff, when such case is “on trial,” shall not be permitted to suffer a nonsuit *as of right,*unless he do so before the jury retires; thus confining its provisions to the particular trial, and not extending them to subsequent proceedings, where for any cause there has been a mistrial, or an erroneous verdict. For the exercise of such a discretion, error cannot be assigned.

Treat, C. J.

This was an action of covenant brought by The City of Chicago against Dyer and others. The defendants pleaded several pleas, on which issues of fact were formed. The jury returned a verdict for the defendants, on all of the issues. A motion for a new trial was made and refused. The Court then sustained an application to set aside the verdict, and permit the plaintiff to submit to a nonsuit. That decision is assigned for error.

There was a trial on the merits, and a finding in favor of the defendants on all of the issues. No error had intervened to the prejudice of the plaintiff, and a motion for a new trial was denied. In this state of case, the defendants were clearly entitled to a judgment on the verdict—a judgment conclusive of the matters submitted to the jury. Instead of entering such a judgment, the *370Court sustained an application to set aside the verdict, and allow the ¡Dlaintiff to suffer a nonsuit; thereby depriving the defendants of their right to a final judgment, and leaving the whole subject matter of the suit open and undetermined. This action of the Court cannot be considered as a reconsideration and allowance of the motion for a new trial. It was not the understanding of the parties, nor the design of the Court. The verdict was vacated for the sole purpose of enabling the plaintiff to suffer a non-suit. It was in effect permitting the plaintiff to dismiss the case after verdict. A plaintiff has no right to a nonsuit after the case has been submitted to a jury. The statute provides, that “Every person desirous of suffering a nonsuit on trial, shall be barred therefrom, unless he do so before the jury retire from the bar.” E. S., ch. 83, § 29. But it is insisted, that it is within the discretion of the Court to permit a plaintiff to become nonsuit after verdict. The Court possesses no such discretion. In the case of Price *v.*Parker, 1 Salkeld, 178, it is said: “Upon a motion to discontinue upon payment of costs, the Court held, that after a general verdict there can be no leave to discontinue; for that would be having as many new trials as the plaintiff pleases; but that after a special verdict there may, because that is not complete and final; but in that case it is a great favor.” In the case of the Judge of Probate *v.*Abbot, 13 New Hampshire, 21, where the authorities on this question arc collected and considered, the Court came to the conclusion that a plaintiff could not become nonsuit after verdict.

The judgment is reversed, and the cause remanded, with directions to the Court to enter final judgment for the defendants on the verdict.

*Judgment reversed.*