Upon the trial of the cause it appeared that the parties, being tradesmen, had worked together for their joint emolument until they earned thirty-two pounds, when they came to a settlement, and the balance of eight pounds was found due to the plaintiff. They afterwards continued to work until they earned one hundred and six pounds more, the whole of which sum was received by the defendant. The plaintiff admitted the receipt of fifty pounds from the defendant, on which evidence the *Page 420 (513) Jury gave a verdict for the plaintiff, assessing his damages to eleven pounds seventeen shillings and sixpence.
A rule was obtained on the plaintiff to show cause why the verdict should not be set aside and a nonsuit entered.
Norwood showed cause. These two principles of law, on the doctrine of nonsuits, are established and known: (I) That a plaintiff cannot be nonsuited before the jury leave the box but with his own consent. 2 Term, 275. (II) That the Court will not permit him to enter a nonsuit after the jury have returned and declared their verdict. He has the right of putting his cause to the jury and risking a verdict, if he thinks proper; but should he do so and the jury find against him, then he cannot enter a nonsuit, because such a practice would give him the advantage over the defendant of receiving the verdict if in his favor, and destroying it if against him. To enter a nonsuit on the rule obtained in this suit would be contrary to both these principles of law, and give to the defendant that advantage which is denied to the plaintiff.
The practice of granting such rules, if established, will give the defendant another advantage over the plaintiff; he may omit to move for a nonsuit before the evidence is closed, when, perhaps it would be in the plaintiff's power to supply the defect relied on by the defendant; and after a verdict is entered against him, move for and obtain this rule, set aside the plaintiff's verdict, and enter a nonsuit in its stead. But if such rules are refused, and the defendant compelled to move for a nonsuit before the jury retire, these evils will be prevented, and the parties stand on equal ground. For should the plaintiff refuse to be nonsuited, and obtain a verdict on evidence materially defective, the defendant would be entitled to and might easily obtain a new trial; but I apprehend that even in such a case he ought not to set aside the verdict and enter a nonsuit in its stead, unless on a rule entered by consent.
The practice in England of granting rules, somewhat similar to the one in this suit, is modern; and it has not, it appears to me, been sufficiently attended to in this State. I suppose that practice to (514) be founded on the statute of 14 Ga. 2, ch. 17, which provides, "that if the plaintiff neglects to bring the issue to trial according to the course of the Court, the Court, on motion or notice, shall give judgment as in case of a nonsuit, unless they allow further time; and the defendant shall recover his costs." If the rule in this suit is not founded on this statute, it is not supported by any one principle of law; and if intended to be founded on this statute, it must be discharged, for the issues were brought to trial according to the course of the Court, and the plaintiff obtained a verdict well warranted by the evidence. 1 Bur., 358. But whether the rule is founded on that statute or not, it is a clear principle that the rule shall be discharged, unless a nonsuit, if moved for *Page 421 before the jury returned, would have been proper and legal. In this case it is not pretended that such a nonsuit would have been legal; the rule, therefore, ought to be discharged. If the county court had jurisdiction in this case, the plaintiff is certainly entitled to a judgment; and that the court had jurisdiction I think, on the examination of the several acts, there can be no doubt. The first act on the subject is that of 1777, ch. 2, sec. 61, by which jurisdiction is given to the county courts in all cases where the debt is above five pounds. By the same act, sec. 69, jurisdiction is given to a single justice in all cases where the debt is five pounds or under. The next act is that of 1785, sec. 4. By this act the jurisdiction of a single justice is raised to ten pounds. Under this act the county courts and justices had concurrent jurisdiction of a debt of ten pounds, and of all sums between that and five pounds. The Act of 1786, ch. 14, sec. 7, is next. This raises the jurisdiction of a single justice to twenty pounds, and contains this proviso: "Provided, also, that no suit shall be commenced in the first instance, returnable to the county court, for any sum under twenty pounds." This proviso appears to me to relate to the suit only, and the sum mentioned in the writ, and not to the balance which may be found on a settlement of the accounts due the plaintiff. And in this construction I am supported by a decision. Haywood's Rep., 122, and the universal opinion that if the defendant pleads in abatement, "that (515) the balance due the plaintiff is not twenty pounds," the plaintiff may well reply the writ for a larger sum. For if this construction is not good, the replication would be bad on demurrer; and what may be pleaded in abatement can never afterwards be taken advantage of. This construction will not render the proviso nugatory; it will still prevent suits on all bonds for small sums. It certainly ought not to extend to the balance on long and great accounts, in the settlement of which are frequently involved the greatest intricacy and difficulty. It often happens that the plaintiff does not know the balance due him on such accounts, and that he forms erroneous opinions of the law arising on them; and shall he, in such a case, after he has prosecuted his suit to a verdict, be nonsuited because that verdict does not happen to amount to twenty pounds? If my construction be not the true one, great evil and injustice will be the consequence of a decision in this case. The law is positive; it leaves no discretion in the Court, and must be carried into execution in all cases. The Court could not take notice of any claim or demand set up by the plaintiff, unless proved and found by the verdict. The judges of the Superior Court, by act of Assembly, have a discretion in such cases; but the county courts would have none. If a plaintiff should honestly enter on his accounts the credits to which the defendant was entitled, leaving a balance of above twenty pounds due *Page 422 him, and bring his suit; if he should by any accident or misfortune, fail to prove an item on his account, he would be nonsuited and have the costs to pay. Creditors whose demands were not much above twenty pounds would be under the necessity of leaving out of their accounts all items, however just, the proof of which was doubtful, so as to bring their debts within the jurisdiction of a single justice. This proviso is omitted by the Act of 1794, ch. 13, and I contend that the seventh section of the Act of 1786 is entirely repealed by the twenty-third section of this act; and that the county courts and justices have concurrent jurisdiction of debts of twenty pounds, and of all debts under that sum and (516) above five pounds, and insist that the rule in this case ought to be discharged. This is an appeal from the county court. The jury in the Superior Court have found a verdict for a sum under twenty pounds; a motion is made by the defendant's counsel to set aside the verdict, after it is recorded, because the county court, in the first instance, had no jurisdiction, the sum being under twenty pounds. The verdict being recorded, I think it ought to stand. This motion, in substance, might have been made at an earlier stage of the proceedings; had that been done, in all probability it would have been granted.