Kettlewell v. Peters

Bowie, C. J., delivered the- opinion of this Court: The appellee, plaintiff below, declared against the appellant — 1st, for goods bargained and sold by the plaintiff to the defendant; 2nd, work done and materials provided by the plaintiff for the defendant, at his request; 3rd, money lent; 4th, money paid; 5th, money received; 6th, account stated. -To all which the appellant pleaded “he never was indebted as alleged.” A jury being impannelled upon the issues joined, the plaintiff, to maintain his action, proved that the contract made for two thousand peach trees, the value of which was sought to be recovered in this suit, was made by the defendant with one Charles S. Peters, (the appellee,) in the month of March 1857; that the farm and nursery whereon the said trees wére grown, was held in fee-simple by James S. Peters, father of the plaintiff, who had died intestate on the 12th of October 1856; whereupon the appellant moved the Court to non-suit the plaintiff, on the ground that the suit ought to have been instituted in the name of the heirs-at-law of the deceased, but the Court overruled the motion of the appellant, to which he excepted, and prayed this appeal. Whatever may be the mode of proceeding in other States, this is not adopted in Maryland. The Court may, in its discretion, content itself with a simple refusal of any prayer not sanctioned by the rules of law. Md. Ins.

Co. vs. Bathurst, 5 G. & J., 159 . When the Court cannot grant the entire prayer as made, though a portion of it, in a seperate distinct form, might have been given, it is not error to reject the whole. Doyle vs. The Comrs. of Balto. Co., 12 G. ³¹⁷ & J., 484 .

Gray vs. Cook, 12 G. & J., 236 . The motion of the defendant below, being contrary to the practice established in this State, was properly overruled, however sufficient the reasons might have been for defeating the action, if presented in another form, upon which we do not mean to express an opinion in this case. A non-suit must be the voluntary act of the plaintiff. Evans’ Frac., 314. “The expressions common in English books, that the Judge directed a non-suit, and others of a similar import, mean no more than this, that the Judge expressed in that form of words his opinion that the plaintiff was not entitled to recover, and that the party submitted to a non-suit rather than the Judge should enforce his