Allaire v. Lee ( 1854 )

Oaklet, O. J.

This is a proper case for making an allowance, unless the objection made to it, was well taken. The defendants have recovered a judgment. A regular trial was had, witnesses were examined by both parties, and after the evidence was closed, the plaintiff was nonsuited. If he had been nonsuited on the defendant’s motion, without. any attempt on the part of their counsel to address the jury, no one, I presume, would doubt that a trial had been had. What took place, was none the less a trial, because the nonsuit was voluntarily submitted to, before the defendant’s counsel had concluded the address he was intending to make to the jury. I think the case too clear to need illustration or argument. A proper allowance will therefore be made.

(The other justices to whom the point was stated, concurred).