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Elmore v. Grymes. IP. The plaintiff may, therefore, apply for a certiorari to bring up a perfect record, or dismiss the present writ of error and proceed anew, as his counsel may think best for the interest of their client.
JOHNSON, J., dissentiente.
The only question of any importance in this cause is, whether a circuit court can, in any case, order a plaintiff to be nonsuited. I ordered the plaintiff below to be nonsuited because the evidence was so inadequate to maintain his suit; but had the jury found for him,' I should have set aside the verdict, and ordered a new trial. The practice of the court from which this cause comes up is this : when the plaintiff has closed his evidence, the defendant is at liberty to move for a nonsuit, or proceed with his testimony. If he introduces evidence it is too late to move for a nonsuit; and the question always to be examined is, whether upon the evidence introduced by the plaintiff, admitting it to be true, the jury can find a verdict for him. So that it is in fact a substitute for a demurrer to evidence, or for a motion for instruction, that the plaintiff cannot recover upon the case made out by him in evidence.
There are several reasons why I must maintain that the courts of the sixth circuit have a right to exercise the power to order a nonsuit even against the will of the plaintiff, and why it would be wise, in all our circuits, to introduce the same practice.
It happens unfortunately for the defendant in error here, that a majority of the judges of this court have pursued a different practice in their circuits; but this, I must insist, is no sufficient reason for subverting, otherwise than by rule, the practice of other States in which this right has been recognized in the administration of justice, coevally with the existence of their courts. Such has been the case in the States of which the sixth circuit consists, and the acts of 1789,' and 1792, have adopted into the courts of the United States, of the respective circuits, not only the forms of process, but the “modes of proceeding" in suits known to the States respectively. That this comes under the denomination of a mode of proceeding, or, in other words, an established practice of the State composing the sixth circuit, appears to me incontrovertible.
* By what right, then, can this court reverse a judgment [ * 473 ] of that circuit, founded in a practice thus sanctioned by law? It does seem to me that the defendant below has a right in this judgment, vested by express statute law, and ought not to be put to the expense of this reversal. For what purpose is power given to this court to alter the practice of the circuits by such regulations as
Elmore v. Grymes. IP. they may deem expedient, if such practice is not to be held legal until altered by a rule of this court?
This court surely does not mean to decide that such was not the received practice of that circuit; this would be a decision in the teeth of positive fact; and if the purport of the decision be that it is an illegal practice, the immemorial practice itself, and the Process Acts of the United States, furnish an express negative to such a decision.
The idea seems to be that it is a practice inconsistent with the · relation in which our circuit courts stand to this court; that ours is not a Nisi Prius system, or something to that effect. What then? This court can alter the practice by a rule, but to overturn a judgment that has already been rendered under such a practice, I must respectfully contend approaches very near to ex post facto legislation, not adjudication, the province of which is to operate only upon existing laws. But it is not a practice appropriate exclusively to a Nisi Prius system, as is proved by this, that writs of error are sued out continually in England upon judgments on nonsuits, (see the cases cited in 1 Archb. Practice, 229–30,) and, though it had been, the States were at liberty to adopt it into their practice, although the Nisi Prius system be unknown to them. That they had adopted it is conclusive against this assumed incompatibility. And in practice it subserves the purposes of justice under our system as effectually as a bill of exceptions or a demurrer to evidence, and in several respects much better. It saves the practitioner from the weight of responsibility, which often results from being compelled to elect between a voluntary nonsuit, and a demurrer to evidence, or a bill of exceptions, which may terminate fatally to his client, and it not unfrequently saves his client from the fatal effects of negligence and misapprehension, either of himself or his attorney, or from surprise.
In point of convenience and expedition in the administration of justice I presume there cannot be two opinions. On this point, as far as exemplum doret, we may cite Great Britain, Massachusetts, and New York, with some confidence, against Pennsylvania, Maryland, and Virginia.
But it is contended that in England the plaintiff is not nonsuited, if he insists on answering when called. If the fact be admitted, what
then? England is not altogether absolute in dictating to [ * 474 ] the courts of the United States, and if those of the * States
of the sixth circuit have asserted some independence in their rules of practice on this subject, I presume their right was unquestionable to do so.
But I want no other authority than the courts of Great Britain to justify the practice of the sixth circuit in this behalf. From the
Elmore v. Grymes. IP.
earliest period, we find the English courts in the exercise of this power, and whoever will examine the cases collected in Mr. Morgan's Treatise on the doctrine of new trials, vol. 3, Essays, will find what a very wide range has been taken by those courts in the application of that practice. Nor have the more modern cases manifested any inclination to retrace their steps. Its salutary effects are universally felt, and perhaps contribute as largely as any other cause to the rapid progress of their courts in disposing of their dockets. If there exists any case prior to that of Macbeath v. Haldimand, 1 Term Rep. 172, · in which the right of the plaintiff to refuse to be nonsuited was recognized, I cannot recollect it; since in that case it would seem that in ordinary cases the right is recognized. But there is abundant proof that the British courts do assert the power to control the exercise of that right by the plaintiff when they think proper. In the cases of change of venue, on motion of plaintiffs, 2 Black. 1031, the right is disputed on the assumed ground that he undertakes to prove some material fact. Now, where can be the objection to applying the same reason to every case that goes to a jury? Does not a plaintiff in fact undertake the same thing whenever he troubles a court with his suit, and has a jury sworn to try his cause upon evidence ? he is no longer subjected to amercement if he fails to recover, and the right to nonsuit him, where he fails to produce evidence that will justify a verdict, is but a reasonable substitute for the absolute penalty to which he was once subjected.
But it is contended that an absurdity is produced, and an acknowledged right violated. Yet the alternative exhibits a more direct and obvious absurdity; since in the case of Macbeath v. Haldimand, and in every case of the kind, the court asserts a positive control over the consciences of the jury, by telling them “they are bound to find for the defendant.” And the greater absurdity must henceforward be incurred, of swearing a jury in a cause, and requiring a verdict at the caprice of a plaintiff who produces not a tittle of evidence to maintain his issue. Nor is any right of the plaintiff taken from him if his rights be regarded in their just extent. He cannot claim a verdict of the jury if he does not produce evidence to sustain it, and it is only in that case that he is precluded from submitting his case to their consciences. When we consider what were the ancient penalties for a false verdict, before they were superseded by the introduction of new trials, it must appear just * and reasonable ! * 475 ) that the plaintiff should rather be exposed to the necessity of bringing a new suit, or moving for a new trial, than that the jury should be subjected to attaint at his will. And on the subject of fiction and legal absurdity, it is certainly too late at this day for our
D'Wolf v. Rabaud. 1 P. courts of justice to be very fastidious on a consideration which has been so thoroughly set at naught by the action of ejectment, fine, and recovery, and sundry other matters of the kind, to which they have resorted for the purposes of substantial justice and public convenience.
I must submit, I suppose, but I cannot do it without protesting against the right of forcing upon my circuit the practice of other circuits in this mode.
By a rule of this court, it is unquestionably in the power of the court to do it. But until then, I can never know what is the practice of my own circuit, until I come here to learn it.
1 P. 476; 6 P. 598.
James D'WOLF, Junior, Plaintiff in Error, v. DaviD JACQUES RABAUD,
JEAN PHILIPPE FREDERICK RABAUD, ALPHONSE Marc RABAUD, Aliens and Subjects of the King of France, AND ANDREW E. BelKNAP, a Citizen of the State of Massachusetts, Defendants in Error.
I P. 476. Where A agreed to ship sugars to B, for account of C, by such vessel as C might designate,
- held, that C might empower B to designate the vessel. A circuit court of the United States cannot order a nonsuit against the will of the plaintiff. The question of citizenship constitutes no part of the issue upon the merits; it must be
raised by a plea to the jurisdiction. A letter having been written to the defendant by a third person, requesting the defendant to ship sugars to the plaintiff, and the defendant having added to the letter the word "agreed," and signed his name— held, that parol evidence was admissible to prove that the plaintiff agreed to advance moneys to the third person on the faith of the shipment; that this agreement and the letter and the assent of the defendant were parts of one transaction; and the written paper was made for the purpose of being delivered to the plaintiff, and was so delivered ; and this being proved, it was further held that the contract of the defendant was not within the statute of frauds of New York.
The case is stated in the opinion of the court.
Ogden and Hall, for the plaintiff.
Webster and King, contrà. [ * 496 1 * Story, J., delivered the opinion of the court.
. Messrs. Rabaud, Brothers, and Co., of Marseilles, brought a suit in the circuit court of the southern district of New York, against James D'Wolf, jun., (the plaintiff in error,) to recover damages, for not shipping them 500 boxes of sugar, on account of one George D’Wolf, according to an agreement entered into by him with them. The declaration contained four counts, and in each of them the sub
D'Wolf v. Rabaud. 1 P.
stance of the contract stated is, that the defendant, in consideration that one Belknap, (one of the partners in the house of Rabaud, Brothers, and Co.,) would authorize George D'Wolf to draw on the plaintiffs for 100,000 francs, undertook and promised that he would ship for the account of George D'Wolf, on board such vessel as he (George D'Wolf) should direct, five hundred boxes of white Havana sugar, consigned to the plaintiffs, at Marseilles. The declaration then proceeds with the proper averments and breaches necessary to maintain the action. Upon the trial, under the general issue, the
jury found a verdict for the plaintiffs, and judgment was given for them accordingly. The cause now comes before this court upon a writ of error and bill of exceptions taken at the trial.
The bill of exceptions is voluminous, and contains, at large, the evidence admitted at the trial, as well as the charge of the *learned judge who presided at the trial. It is unnecessary [ *497] to refer to that evidence, or to consider its nature, bearing, and extent, upon which so ample a comment has been made at the bar, except so far as it applies to some question of law decided by the court, to which an exception has been taken. The whole facts were left open to the jury, and, so far as they were imperfect or inconclusive, the defendant has had the full opportunity of addressing his views to the jury, and they have found their verdict against him.
In the progress of the trial, a letter of the 27th December, 1825, written by George D'Wolf to Belknap, was offered by the defendants in evidence, for the purpose of showing an authority from George D'Wolf to Belknap, to direct or name a vessel to the defendant, on board of which the sugars might be shipped. The defendant objected to its admission, and the objection was overruled. This constitutes the first ground of error, now insisted on by the defendant. We are of opinion that the letter was rightly admitted, for both of the reasons stated in the charge. It was evidence of such an authority; and the defendant made no objection to it at the time, on account of any insufficiency in this respect, but put his defence by his letter of the 5th of January, 1826, on an entirely distinct ground.
After the evidence for the plaintiffs was closed, the defendant moved for a nonsuit, which motion was overruled. This refusal certainly constitutes no ground for reversal in this court. A nonsuit may not be ordered by the court, upon the application of the defendant, and cannot, as we have had occasion to decide at the present term, be ordered in any case without the consent and acquiescence of the plaintiff. Elmore v. Grymes, ante, page 469. In the further progress of the trial, upon the examination of one Frederick G. Bull, a witness for the defendant, the counsel for the defendant offered to VOL. VII.