is cured by the statute of jeofails. It has even been holden, that a continuance may be added, after judgment in a penal action"; but then, there must be something to amend by. A rule to discontinued may be had either before or after declaration; and it is usually granted upon payment of costs'. An executor or administrator is liable to costs upon a discontinuance, where he has knowingly brought a wrong actions: But where that is not the case, he may have leave to discontinue, without paying costs". The rule to discontinue is a side bar rule; and may be had, as a matter of course, from the clerk of the rules in the King's Bench, at any time before trial or inquiry: and leave has been given to discontinue after argument, and before judgment on demurrer: And even after a special verdict, the plaintiff may discontinue, by leave of the court, because that is not complete and final; but in this case it is a great favour': And it is never granted after a general verdictTM, or writ of inquiry executed and returned", nor after a peremptory rule for judgment on demurrer. The court of Common Pleas will not permit the demandant in a writ of right to discontinue". And a discontinuance is not allowed in that court, after a special verdict, in order to adduce fresh proof in contradiction to the verdict. The plaintiff cannot have leave to discontinue, pending a rule for judgment as in case of a nonsuit. And where he moved to discontinue, upon payment of costs, after judgment given for him on demurrer, but not entered of record, and a writ of error brought, and bail put in thereupon, the court refused to make a rule to discontinue, without payment of costs on the writ of error. After notice of trial given, and regularly countermanded, the plaintiff, in the Common Pleas, obtained a rule to discontinue, upon payment of costs; and it ap. pearing that after the notice of trial, and before the countermand, a witness for the defendant, who resided in London, had set out for the York assizes, the question was, whether the expense of this witness could be allowed the defendant in costs: The court held, that as the countermand was regular, the costs for this witness could not be allowed. The rule to discontinue is obtained from the clerk of the rules in the King's Bench, or secondaries in the Common Pleas; but in the latter court, if it be after plea pleaded, the defendant's attorney must first consent to a rule in the treasury chamber in term-time, or before a judge in vacation; or else there must be a rule to shew cause. And upon a rule to discontinue, the plaintiff is to get an appointment from the master in the King's Bench, or prothonotaries in the Common Pleas, to tax the costs, and serve a copy of it on the defendant's attorney; it having been holden, that the service of a rule to discontinne, without an appointment to tax the costs, is not of itself a discontinuance of the action. In the King's Bench, the master will tax the costs ex parte, if the defendant's attorney do not attend on the first appointment': but in the Common Pleas, another copy of the rule must be made, in case of non-attendance, and a second appointment obtained thereon, and served as before, and so a third time; and if he for in a late case, the expenses of a witness, under similar circumstances, were allowed by the prothonotary. S C đỏ bot attend the third appointment, the prothonotaries will tax the costs ex parte. The costs being taxed, are to be forth with paid; otherwise the plaintiff may be compelled to proceed in the action for the rule being conditional, is no stay of proceedings; and it has been holden, that for the nonpayment of these costs, the plaintiff is not liable to an attachHent. In replevin, the avowant, though an actor, cannot have a rule to discontinue: And where the rule is obtained by unfair practice, the court will discharge it. A nolle prosequi is an acknowledgment or agreement by the plaintiff, that he will not further prosecute his suit, as to the whole or a part of the cause of action; or where there are several defendants, against some or one of them®. On a plea of coverture, &c. if the plaintiff cannot answer it, he may enter a nolle prosequi as to the whole cause of action; but the defendant in such case, is entitled to costs, under the 8 Eliz. c. 2. § 2. So if the defendant demur to to one of several counts of a declaration, the plaintiff may enter a nolle prosequi as to that count which is demurred to, and proceed to trial upon the other counts; or if he join in demurrer and obtain judgment, he may enter a nolle prosequi as to the issue, and proceed to a writ of inquiry on the demurrer. And if the plaintiff enter a nolle prosequi as to any of the counts in a declaration, he is not entitled to costs on such counts". But after a demurrer for mis-joinder, the plaintiff cannot cure it, by entering a nolle prosequi. And if there be a demurrer to a declaration, consisting of two counts, against two defendants, because one of them was not named in the last count, the plaintiff cannot enter a nolle prosequi on that count, and proceed on the others. If there be a demurrer to part, and an issue upon other part, and the plaintiff prevail on the demurrer, it was in one case holden, that without a nolle prosequi as to the issue, he cannot have a writ of inquiry on the demurrer; because on the trial of the issue, the same jury will ascertain the damages for that part which is demurred to. But in a subsequent case, where the declaration consisted of four counts, to three of which there was a plea of non assumpsit, and a demurrer to the fourth; and after judgment on the demurrer, the plaintiff took out a writ of inquiry, and executed it: this was moved to be set aside, there being no nolle prosequi on the roll; and it was insisted, that the plaintiff ought to take out a venire, as well to try the issue, as to inquire of the damages upon the demurrer: Sed per Curiam, "that is indeed the course, where the issues are carried down to trial, before the demurrer is determined, and in that case the jury give contingent damages; but here the demurrer being determined, and the plaintiff being able to recover all he goes for upon the fourth count, there is no reason why we should force him to carry down the record to nisi prius: and as to the want of a nolle prosequi upon the roll, he may supply that, when he comes to enter the final judgment; if not, the defendant will have the advantage of it upon a writ of error: The judgment upon the inquiry must stand." *16 East, 129. 2 Marsh. 145. H. Blac. 108. 4 Durnf. & East, 360. and see 1 Saund, 265. (5). di Salk. 219. 12 Mod. 558. S. C. 1 Str. 532. 8 Mod. 108. 3. C. and see 7 Durof. & East, 473. 1 Saund, 110. (1). In trespass, or other action for a wrong, against several defendants, the plaintiff may, at any time before final judgment, enter a nolle prosequi as to one defendant, and proceed against the others: And so in assumpsit, or other action upon contract, against several defendants, one of whom pleads bankruptcy, or other matter in his personal discharge, the plaintiff may enter a nolle prosequi as to him, and proceed against the other defendants". But a nolle prosequi cannot be entered as to one defendant, after final judgment against the others: And it seems that in assumpsit, or other action upon contract, against several defendants, the plaintiff cannot enter a nolle prosequi as to one, unless it be for some matter operating in his personal discharge, without releasing the others. So where the plaintiff declares on a joint contract against two defendants, and one of them pleads infancy, the plaintiff cannot enter a nolle prosequi as to him, and proceed against the other defendant in that action; but should commence a new action against the adult defendant only. In entering a nolle prosequi, the plaintiff need not be amerced pro falso clamore; but it is sufficient that the defendant be put without day: And where, in assumpsit against two defendants, one of them pleaded his bankruptcy, and the plaintiff entered a nolle prosequi as to him, and proceeded to trial and obtained a verdict against the other, who pleaded the general issue; the court held, that the former defendant was not entitled to costs. Of a nature similar to the nolle prosequi, is the entry of a stet processus, by which the plaintiff agrees that all further proceedings in the action shall be stayed. This entry is "Hob. 70. Cro. Car. 239. 243. 2 3 Esp. Rep. 76. 5 Esp. Rep. 47. Rol. Abr. 100. 2 Salk. 455, 6, 7. 3 S. P. and see 3 Taunt. 307. 4 Taunt. Salk. 244, 5. Wils. 306. D: Wils. 89. Salk. 455. 468. Str. 574 • Harewood v. Matthews & another, Wils. 89. and sce 2 Maule & Sel. H. 56 Geo. III, K. B. 23. 444. |