CHAPTER XXV. NOLLE PROSEQUI, RETRAXIT. CHAP. XXV. A NOLLE PROSEQUI is in the nature of an acknowledg- What it is. ment or undertaking by the plaintiff to forbear to proceed any further, either in the suit altogether, or as to some part of it, or as to some of the defendants; but if entered as to part of the suit only, or as to some of the defendants, he is at liberty to proceed as to the rest (a). A nolle prosequi is different from a nonpros, for there the plaintiff is put out of court with respect to all the defendants (b). If the nolle prosequi be entered before judgment, the plaintiff may afterwards bring another action for the same cause; but if entered after judgment, it operates as a retraxit, and bars any future action for the same cause (c). Declaration, &c. To the whole Declaration, &c.] If the plaintiff misconceive To the whole his action, or make a mistake as to the party sued, (as where he sues a feme covert, and she pleads coverture in bar (d), or where he discovers that the defendant is an infant, and the action is not for necessaries, or the like), he may enter a nolle prosequi as to the whole cause of action (e), and proceed de novo in another action. several Counts, &c. To some of several Counts, &c.] Where the defendant pleads To some of one plea to the whole declaration, and that plea happens to be a complete bar to one or more of the counts, but not to others, the plaintiff may enter a nolle prosequi as to the counts to which the plea is a bar. Thus, where assumpsit is brought for goods sold &c., and upon an account stated, and infancy is pleaded to the whole of the declaration, the plaintiff may enter a nolle prosequi as to the count upon an account stated, (no action upon an account stated lying against an infant), and reply as to the other counts (f). In a case decided before the recent rules prohibiting the insertion of several counts upon the same cause of action, where the declaration in debt consisted of one special and several general counts; and to the special count there were several special pleas, and to the general counts the general issue, the plaintiff having entered a nolle prosequi on the special count, and joined issue on the others; it was held that he was entitled to recover on the general counts, though the matters proved might have been given in evidence on the special count, and the pleas pleaded thereto (g). (a) 1 Saund. 207 b, c. (b) Philpot v. Muller, 1 Doug. 169, n. (c) Cooper v. Tiffin, 3 T. R. 511: Bowden v. Horne, 7 Bing. 716; 5 Moo. & P. 756, S. C. (d) Cooper v. Tiffin, 3 T. R. 511. (e) See the form of the entry, Chit. Forms, 620. (f) 1 Saund. 207 b. (g) Hayward v. Kain, 1 M. & M. 311. BOOK IV. Where the Defendant demurs. To Part of a Count. As to some of several Defendants. But where there is a demurrer to a whole declaration, the plaintiff will not, in general, be allowed to rectify his error by entering a nolle prosequi as to some of the counts (h), or to any particular objectionable part of the declaration (1): thus, where there was a demurrer to a declaration against two defendants, because one of them was not named in one of the counts, the court held that the plaintiff could not enter a nolle prosequi as to that count, and proceed on the others (4). So, where there was a demurrer to a declaration for a misjoinder of counts, the court held that the plaintiff could not rectify his mistake by entering a nolle prosequi as to some of the counts (1). But if the defendant demur or plead separately to several counts, the plaintiff may enter a nolle prosequi as to some of the counts, and proceed to trial or argument on the others (m). If the defendant plead to one count and demur to another, the plaintiff, if he have judgment on the demurrer, and be content to take damages upon that judgment only, may in general execute a writ of inquiry as to it, or, in case of a bill of exchange or the like, may have it referred to the master, and may enter a nolle prosequi as to the issue in fact (n). Where, in an action of trespass and assault, the defendant pleaded, first, not guilty'; and, secondly, a justification; the plaintiff replied, joining issue on the two pleas, and new assigning the defendant having demurred to the replication and new assignment, the plaintiff went down to trial, and obtained a verdict for 157. damages on the first issue; after which the plaintiff entered a nolle prosequi to the new assignment, and gave the defendant judgment on demurrer: the court, under these circumstances, set aside the nolle prosequi (o). To Part of a Count.] The plaintiff may enter a nolle prosequi as to part of a count. Thus, in trespass, where the plaintiff declares that the defendant took and carried away the plaintiff's hay, grass, and corn, he may enter a nolle prosequi as to the hay and grass, and proceed for the taking of the corn (p). As to some of several Defendants.] In actions upon contracts against several defendants, if the defendants join or sever in their pleas, the plaintiff cannot enter a nolle prosequi as to any one of them, without releasing the others (7); but if they In Actions ex sever in their pleas, and one of them plead his bankruptcy, ne unques executor, or any other matter in his personal discharge, although he plead also to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others (r). Contractu. (h) Drummond v. Dorant, 4 T. R. 360; 1 Saund. 207 b. (i) Butler v. Mapp, 10 Bing. 391; 4 Moo. & Scott, 258, S. C. (k) Drummond v. Dorant, 4 T. R. 360. (1) Rose v. Bowler, 1 H. Bl. 108: see Drummond v. Dorant, 4 T. R. 360. (m) 1 Saund. 207 a, 203, 339: 2 Ro. Abr. 101, G. pl. 1: Fleming v. Langtom, 1 Str. 532: Duperoy v. Johnson, 7 T. R. 473: Dicker v. Adams, 2 B. & P. 165: 1 B. & P. 157: Bertram v, Gordon, 6 Taunt. 445. (n) Ante, 710. See form of the entry, Chit. Forms, 620. (0) Strother v. Randerson, 5 Dowl. 280. (p) 1 Saund. 207 b. (q) Noke v. Ingham, 1 Wils. 90; 1 Saund. 207, n. (r) Noke v. Ingham, 1 Wils, 89: 1 Doug. 169, n. S. C.: Hawkins v. Rom bottom, 6 Taunt. 179: Moravia v. Hunter, 2 M. & Sel. 444. In Actions ex In actions ex delicto, the plaintiff may enter a nolle prosequi CHAP.XXV. as to some of the defendants, and proceed against the others at any time before final judgment, even although they all Delicto. join in the same plea, and be found jointly guilty (s). And a fortiori he may do so where the defendants plead severally (t); or where they plead jointly, but their plea in its nature is several; as where in ejectment against several, who jointly plead not guilty, the plaintiff may, even at the assizes, enter a nolle prosequi as to one or more of the defendants, and proceed against the rest (u). Also, if the jury, in an action of trespass, sever the damages where they should not, the plaintiff may take judgment de melioribus damnis against one of the defendants, and enter a nolle prosequi as to the other (x). Where an action of trover was brought against several defendants, and a verdict taken against all, though the plaintiff had previously informed one of them that no evidence would be given against him, as he would be wanted as a witness, in which capacity he accordingly attended; the court ordered a nolle prosequi to be entered, as to that defendant (y). How entered.] If entered before issue joined, the plaintiff How entered. inserts it at the commencement of his replication, &c., and it consequently appears upon the roll when it is made up; but if after issue joined, it is sufficient if it be entered at the time of entering the final judgment (≈). If the plaintiff inadvertently enter the nolle prosequi in an improper way, the court will, perhaps, on application for that purpose in proper time, relieve him from it (a). Costs.] Where a nolle prosequi is entered as to the whole de- Costs. claration, the defendant is, and always was, entitled to costs, in the same manner as upon a discontinuance (b). And where entered as to some of several counts, or as to part of a count, the plaintiff was not entitled to costs as to these counts, or parts of counts, although he had a verdict on the rest (c). But although the plaintiff was not entitled to such costs, yet he was not liable to pay the defendant his costs occasioned thereby. Now, however, by statute 3 & 4 W. 4, c. 42, s. 33, "where any nolle prosequi shall have been entered upon any count, or as to part of any declaration, the defendant shall be entitled to, and have judgment for, and recover his reasonable costs in that behalf." And since this enactment it has been held that a nolle prosequi as to part of the sum claimed in the declaration will entitle defendant to the costs on such nolle pro (8) Cour v. Louther, 1 Ld. Raym. 597: Dale v. Eyre, 1 Wils. 306: Parker v. Lawrence, Hob. 70: Lover v. Salkeld, 2 Salk. 455. (f) Walsh v. Bishop, Cro. Car. 239: Id. 243, S. C.: 2 Ro. Abr. 100, pl. 5: Greeves v. Rolls, 2 Salk. 457. (u) Gree v. Rolle, 1 Ld. Raym. 716; 12 Mod. 651, S. C. () Vol. I. 323. See form of the entry, Chit. Forms, 621. (y) Bloomfield v. Blake, 2 Dowl. 237. (2) Fleming v. Langton, 1 Str. 532: Duperoy v. Johnson, 7 T. R. 473: Bowden v. Horne, 7 Bing. 723; 5 Moo. & P. 756, S. C. See form of entry of nolle prosequi to the whole declaration, Chit. VOL. II. Forms, 620; the like to one or more of (a) See Bouden v. Horne, 7 Bing. 723; The (b) Cooper v. Tiffin, 3 T. R. 511. (c) Hubbard v. Briggs, 16 East, 129. U BOOK IV. Where the Defendant demurs. To Part of a Count. As to some of several Defendants. But where there is a demurrer to a whole declaration, the plaintiff will not, in general, be allowed to rectify his error by entering a nolle prosequi as to some of the counts (k), or to any particular objectionable part of the declaration (i): thus, where there was a demurrer to a declaration against two defendants, because one of them was not named in one of the counts, the court held that the plaintiff could not enter a nolle prosequi as to that count, and proceed on the others (4). So, where there was a demurrer to a declaration for a misjoinder of counts, the court held that the plaintiff could not rectify his mistake by entering a nolle prosequi as to some of the counts (1). But if the defendant demur or plead sepa rately to several counts, the plaintiff may enter a nolle prosequi as to some of the counts, and proceed to trial or argument on the others (m). If the defendant plead to one count and de mur to another, the plaintiff, if he have judgment on the demurrer, and be content to take damages upon that judgment only, may in general execute a writ of inquiry as to it, or in case of a bill of exchange or the like, may have it referred to the master, and may enter a nolle prosequi as to the issue in fact (n). Where, in an action of trespass and assault, the defendant pleaded, first, not guilty'; and, secondly, a justification; the plaintiff replied, joining issue on the two pleas, and new assigning the defendant having demurred to the replication and new assignment, the plaintiff went down to trial, and obtained a verdict for 157. damages on the first issue; after which the plaintiff entered a nolle prosequi to the new assignment, and gave the defendant judgment on demurrer: the court, under these circumstances, set aside the nolle prosequi (o). To Part of a Count.] The plaintiff may enter a nolle prosequi as to part of a count. Thus, in trespass, where the plaintiff declares that the defendant took and carried away the plaintiff's hay, grass, and corn, he may enter a nolle prosequi as to the hay and grass, and proceed for the taking of the corn (p). As to some of several Defendants.] In actions upon contracts against several defendants, if the defendants join or sever in their pleas, the plaintiff cannot enter a nolle prosequi as to any one of them, without releasing the others (q); but if they In Actions ex sever in their pleas, and one of them plead his bankruptcy, ne unques executor, or any other matter in his personal dis charge, although he plead also to the action of the writ, the plaintiff may enter a nolle prosequi as to him, and proceed against the others (r). Contractu. (h) Drummond v. Dorant, 4 T. R. 360; 445. 1 Saund. 207 b. (i) Butler v. Mapp, 10 Bing. 391; 4 Moo. & Scott, 258, S. C. (k) Drummond v. Dorant, 4 T. R. 360. (1) Rose v. Bowler, 1 H. Bl. 108: see Drummond v. Dorant, 4 T. R. 360. (n) Ante, 710. See form of the entry, Chit. Forms, 620. (0) Strother v. Randerson, 5 Dowi 280. (p) 1 Saund. 207 b. (9) Noke v. Ingham, 1 Wils. 90; 1 Saund. 207, n. (r) Noke v. Ingham, 1 Wils. ; 1 Doug. 169, n. S. C.: Hawkins v. Rams botton, 6 Taunt. 179: Moravia v. Hunter, 2 M. & Sel. 444. In Actions ex In actions ex delicto, the plaintiff may enter a nolle prosequi CHAP. XXV. as to some of the defendants, and proceed against the others at any time before final judgment, even although they all Delicto. join in the same plea, and be found jointly guilty (s). And a fortiori he may do so where the defendants plead severally(); or where they plead jointly, but their plea in its nature is several; as where in ejectment against several, who jointly plead not guilty, the plaintiff may, even at the assizes, enter a nolle prosequi as to one or more of the defendants, and proceed against the rest (u). Also, if the jury, in an action of trespass, sever the damages where they should not, the plaintiff may take judgment de melioribus damnis against one of the defendants, and enter a nolle prosequi as to the other (x). Where an action of trover was brought against several defendants, and a verdict taken against all, though the plaintiff had previously informed one of them that no evidence would be given against him, as he would be wanted as a witness, in which capacity he accordingly attended; the court ordered a nolle prosequi to be entered, as to that defendant (y). How entered.] If entered before issue joined, the plaintiff How entered. inserts it at the commencement of his replication, &c., and it consequently appears upon the roll when it is made up; but if after issue joined, it is sufficient if it be entered at the time of entering the final judgment (≈). If the plaintiff inadvertently enter the nolle prosequi in an improper way, the court will, perhaps, on application for that purpose in proper time, relieve him from it (a). Costs.] Where a nolle prosequi is entered as to the whole de- Costs. claration, the defendant is, and always was, entitled to costs, in the same manner as upon a discontinuance (b). And where entered as to some of several counts, or as to part of a count, the plaintiff was not entitled to costs as to these counts, or parts of counts, although he had a verdict on the rest (c). But although the plaintiff was not entitled to such costs, yet he was not liable to pay the defendant his costs occasioned thereby. Now, however, by statute 3 & 4 W. 4, c. 42, s. 33, "where any nolle prosequi shall have been entered upon any count, or as to part of any declaration, the defendant shall be entitled to, and have judgment for, and recover his reasonable costs in that behalf." And since this enactment it has been held that a nolle prosequi as to part of the sum claimed in the declaration will entitle defendant to the costs on such nolle pro (4) Cour v. Louther, 1 Ld. Raym. 597: Dale v. Fyre, 1 Wils. 306: Parker v. Lawrence, Hob. 70: Lover v. Salkeld, 2 Salk. 455. (t) Walsh v. Bishop, Cro. Car. 239: Id. 243, 8. C.: 2 Ro. Abr. 100, pl. 5: Greeves V. Rolls, 2 Salk. 457. () Gree v. Rolle, 1 Ld. Raym. 716; 12 Mod. 651, S. C. Vol. I. 323. See form of the entry, Chit. Forms, 621. Bloomfield v. Blake, 2 Dowl. 237. (2) Fleming v. Langton, 1 Str. 532: Duperoy v. Johnson, 7 T. R. 473: Bowden v. Horne, 7 Bing. 723; 5 Moo. & P. 736, S. C. See form of entry of nolle prosequi to the whole declaration, Chit. VOL. II. Forms, 620; the like to one or more of (a) See Bouden v. Horne, 7 Bing. 723; (b) Cooper v. Tiffin, 3 T. R. 511. The Harris, 1 Bing. N. C. 13; 4 Moo. & Scott, (c) Hubbard v. Briggs, 16 East, 129. U |