The People, ex rel. Davis, against The Judges of the Court of C. P. of the County of Tompkins

*The People, ex. rel. Davis, against The Judges of the Court of C. P. of the County of Tompkins. On return to an alternative mandamus. Bull sued Davis before a justice of Tompkins; and judgment was for Davis, who appealed to the C. P. On the jury in the C. P. , . , . . . ^ . mg on their verdict and returning to the bar, Bull, the appellee (plaintiff) being called, did not appear or answer; and it was suggested by his counsel that he intended to submit to a non-suit. The court, however, received the verdict, which was 180 dollars in favor of the appellant (defendant); but at a subsequent term ordered judgment of non-suit. The plain-a^eUantTn0» of <?.p-may submit to a non-suit, or thT"™urt as in other J. A. Spencer, for the relator, now moved for a peremptory mandamus, commanding the C. P. to vacate the rule. J. L. Viele, contra. [MAJORITY — Curia.] Curia. There are certainly some provisions in the 50 dollar act, especially in the 36th section, inconsistent with the idea that a plaintiff appellee or appellant can be non-suited. But this is a right which the plaintiff has in all other courts. It is a common law right, which we think cannot be taken away by mere implication. The legislature have not denied it expressly; and till they do this, we must take it as their intention that it should remain. Motion denied.