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U.S. Supreme Court

Doe on the Demise of Elmore v. Grymes, 26 U.S. 1 Pet. 469 469 (1828)

Doe on the Demise of Elmore v. Grymes

26 U.S. (1 Pet.) 469




The courts of the United States have no authority to order a peremptory nonsuit against the will of the plaintiff on the trial of a cause before a jury. The plaintiff might agree to a nonsuit, but if he does not so choose, the court cannot compel him to submit to it.

When the state of the record did not show a judgment of nonsuit to have been entered, although the bill of exceptions states the fact, the plaintiff may apply for a certiorari to bring up a perfect record or dismiss the writ of error and proceed de novo.

An action of ejectment was instituted in the Circuit Court of the United States for the District of Georgia for the recovery of 287 1/2 acres of land, in which the plaintiffs claimed title as follows: a grant from the State of Georgia to Samuel Alexander and a deed from John Cessna, styling himself "Sheriff of Greene County in the State of Georgia," purporting to convey to Buckner Harris by virtue of a sale under an execution against Herod Gibbs,

"two hundred and eighty-seven and a half acres of land in said county on Little Beaver Dam, on the waters of Richland Creek, and bounded on Academy lands, and land belonging to William Alexander, which land was formerly the property of Samuel Alexander,"

a deed from Buckner Harris to Ezekiel E. Park for a tract of land

"containing two hundred and eighty-seven and a half acres in the County of Greene and State of Georgia on the Little Beaver Dam of Richland Creek, being an equal half of the double bounty of land granted to Samuel Alexander adjoining Academy lands."

The plaintiff then introduced a witness who testified that "Ezekiel Park was in possession of a tract of land lying in Greene County, usually called Park's Old Mill Tract, on Beaver Dam Creek, for about twenty years." He then produced a deed from Ezekiel E. Park to John A. Elmore, for a tract of land

"in the County of Greene and State of Georgia on the Little Beaver Dam Creek, or Fork of Richland Creek, being one equal half of a double bounty tract, originally granted to Samuel Alexander, adjoining lands belonging to the university, being the same originally sold and conveyed to Herod Gibbs by the grantee on 14 March, 1790."

He then exhibited a deposition of the county surveyor stating that he had made a resurvey of the premises in dispute agreeably to a plot annexed to his deposition, which corresponded in its outlines with that annexed to the original grant, "completely

Page 26 U. S. 470

covering the premises in dispute," which he designated on the plat.

The plaintiff then called a witness who testified that W. A. Grymes was in possession of the premises at the commencement of the action, and then closed his testimony.

The defendant's counsel thereupon moved for a nonsuit on the following grounds:

1st. Because the plaintiff had failed to make out his title by the documentary evidence on which he rested his case.

2d. Because there was no sufficient evidence of possession to give a title under and by force of the statute of limitations of Georgia.

The circuit court ordered a nonsuit to be entered against the consent of the plaintiff, and a writ of error was prosecuted by him and the cause brought before this Court.

Page 26 U. S. 471

MR. CHIEF JUSTICE MARSHALL delivered the opinion of the Court.

The Court has had this case under its consideration, and is of opinion that the circuit court had no authority to order a peremptory nonsuit against the will of the plaintiff. He had

Page 26 U. S. 472

a right by law to a trial by a jury and to have had the case submitted to it. He might agree to a nonsuit, but if he did not so choose, the court could not compel him to submit to it. But the state of the record does not enable this Court to render a final judgment, because the record is defective in not showing a judgment of nonsuit entered in the circuit court. Although the bill of exceptions states that fact yet the record does not contain the judgment itself.

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.


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.

Page 26 U. S. 473

By what right then can this Court reverse a judgment 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 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 docet, 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 the courts of the United States, and if those of the

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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 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, 3 vol. 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 Macbeth v. Haldeman, 1 Term 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, 3 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 Macbeth v. Haldeman and in every case of the kind, the court asserts a positive control over the consciences of the jury by telling it "it is 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 from submitting 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

Page 26 U. S. 475

and reasonable 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 courts of justice to be very fastidious on a consideration which has been so thoroughly set at nought 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.

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