Lawrin ex rel. Dove v. Hanks

Colcock, J.
There can be no doubt that a plaintiff may, at any time before the verdict is read by the clerk, submit to a nonsuit; and a defendant who pleads a discount is, as to that, considered as if he had brought his action. The olr-ject of the act was to prevent unnecessary litigation, and thus to enable a defendant who had a demand against one who should sue him, to recover it, without the necessity of a cross action. What reason then can be urged why a defendant in such a case should not as well be permitted to withdraw his action, as a plaintiffs It does not embarass the plaintiff. If the discount is withdrawn, he goes on to recover his whole demand. In the case before us, the court should have granted the motion, and directed the jury to find for the plaintiff the full amount of his demand. — A new trial is therefore granted, unless the defendant be permitted to withdraw the discount, and endorse on the back of the record that it is so withdrawn.

Ervin for the motion,

Evans contra.