Hall v. Blake ( 1834 )

BY THE COURT.

If it was a non suit that was moved for and •ordered, it was properly moved and ordered, because of the failure -of the proof. The declaration contains only the common counts— the contract was special, and had been part performed. No step had been taken to abandon or put an end to it, and recover back the money paid; so far from it, the plaintiff held on to the contract, and the suit was to recover damages for its non performance. It was, in fact, a suit on the contract, which was a subsisting one, and -conferred no right to recover on the common counts. The record leaves it doubtful whether a non suit was ordered. We incline to construe it a non suit. The finding of the jury was improper; they should have been discharged. We reverse the proceedings as to all after the motion, but the costs; and under the law give judgment of non suit, leaving each party to pay half the costs on error.