The opinion, concurred in by a majority of the Court, was drawn up by
Hathaway, J.A petition for partition of two parcels of land, described in the first and second counts in the petition, of each of which parcels, the petitioner claimed to own three undivided eighteenth parts, in common and undivided.
The respondent pleaded sole seizin, and a former judgment, in bar, and, an issue having been duly submitted to the jury, a verdict was rendered for the petitioner, and the case is presented on exceptions to the rulings of the Judge at the trial.
The admission of the depositions of Mrs. Merry and James Ham was objected to, because they were taken before the justice of the municipal court of Brunswick, acting in his official capacity as justice of that court. The statute of 1850, establishing that court, c. 195, § 2, gave him concurrent authority with justices of the peace in that matter, and the depositions were properly admitted.
The ruling of the Judge, by which the plea in bar, and the evidence introduced by the respondent in support of it, was excluded from having any effect, presents a more serious question.
Whatever titles the petitioner and the respondent have, or claim to have to the lands of which partition is sought, is derived from Mary Larrabee.
The petitioner’s title is by her deed to him of March 9, *2031842; and the respondent’s title is as her devisee, she having deceased in 1855.
The judgment pleaded in bar was on a petition for partition against Mary Larrabee, in which the petitioner claimed partition of the same parcel of land described in the first count of this petition.
A former judgment between the same parties, determining the same issue, would, undoubtedly, be conclusive as a plea in bar, and such judgment, between the petitioner and Mary Larrabee, would have the same effect, for the respondent, being her devisee, is privy in estate with her. 1 Greenl. Ev. 8th ed., § § 189, 522, 523, 528, 531; Colton v. Smith, 11 Pick. 316; Outram v. Morewood, 3 East, 346.
In 1849, at the March term of the late District Court in the county of Cumberland, Nehemiah Larrabee (the petitioner in this case,) and Sarah C. L. Dakin, entered their petition for partition of two parcels of land described in the first and second counts in said petition, of which they alleged they were seized in common and undivided with Mary Larrabee. The land described in the first count in that petition was the same land described in the first count of the petition in this case, and the petitioner, Larrabee, claimed the same portion thereof as in this petition.
Mary Larrabee appeared in that case and pleaded solo seizin in herself, and, on trial of the issue, a verdict was rendered that she was sole seized in fee of the premises described in the first count in the petition, and, by the record, it appears that the verdict on the second count was in favor of the petitioners, and that the case proceeded with the usual progress of litigated actions until the April term of this Court, 1854, “when and where it was considered by the Court that the petitioners take nothing in the premises named in the first count of their petition, and that partition of the premises named in the second count in their petition bo made, according to the verdict of the jury.” It appears by the record that commissioners were then appointed, and that the petition was continued from term to term till the April term, 1855, *204'■when it was thus recorded, “ and now the said petitioners appear and have leave to discontinue the said petition against the said Mary Larrabee.”
The process of partition, by petition, is analogous to that .of a writ of ..partition, at common law; the former being a substitute for the latter. 1 Greenl. 376.
It is not adversary in its character, unless the petitioner’s .claim is resisted, and if so, and litigated, as the statute prescribes, the proceedings .of the trial and its results are subject •to the same legal rules which govern in other actions at law!
• The. proceedings, on.the petition of Nehemiah Larrabee and Sarah .0. L.- Dakin against Mary Larrabee, have the same effect, as evidence in this case, as if that petition had been in his náme alone, for the several shares which each petitioner claimed were specified therein, and, by R. S. of 1841, c. 121, § 16, as amended by statute of 1842, c. 31, § 16, the joinder .was authorized.
The judgment of the Court, April term, 1854, was conclusive of the rights of the parties to the land described in the first count of the petition, and could not be affected by the continuance of the petition, .for the purpose of completing the proceedings necessary to carry into effect the interlocutory judgment, that partition should be made of the land described in the second count.
The litigation had ceased. — The respondent was out of Court.- — She could recover no costs for further attendance. She was then entitled to executions for her costs. Ham v. Ham, 43 Maine, 285.
The. Judgments in favor of the petitioners and the respondent, at the April term,' 1854, were both conclusive of their several rights in the matter, of the benefit of which judgments neither party could deprive the other after that Court had adjourned. Brown v. Bulkely & al., 11 Cush. 169.
A discontinuance of a suit is similar to a nonsuit. It happens by reason of the plaintiff’s fault, lapse or neglect. It occurs while the suit is. in progress.
*205That the plaintiff might discontinue or become nonsuit, after the suit was terminated in the defendant’s favor, would ■be an absurdity.
The plaintiff cannot become nonsuit or discontinue after a verdict for the defendant.
“ After a general verdict, there can be no leave to discontinue, for that would be having as many trials as the plaintiff pleases.” Price v. Parker, 1 Salk. 178; Greene v. Monmouth, 7 Mass. 467; Haskell v. Whitney, 12 Mass. 47 and Rand’s notes; Bridge v. Sumner, 1 Pick. 371; 2 Johns. 181, 191; 3 Greenl. Ev. § 263.
Before the return of a verdict, the Court may permit the plaintiff to become nonsuit, but this cannot be done after the verdict is rendered. Judge of Probate v. Abbott, 13 N. H. 21.
If a plaintiff, after a verdict against him, could at his pleasure discontinue or become nonsuit on his own motion, and thereby vacate the verdict, the defendant could never recover a verdict which he could retain. A Judge presiding could not prevent the plaintiff from abandoning his action in Court, if he wished to do' so; but such procedure on his part, alone, could not be permitted to deprive the defendant of the rights which he had already acquired by his verdict or judgment. To allow him to do so would operate very unequally — it would be oppressive — it would give the plaintiff as many new trials as he pleased to have, without giving the respondent any opportunity to be heard upon the question whether he should have them or not. Undoubtedly, the records of the judgments of the Court are conclusive of their correctness, however erroneous may have been the proceedings upon which they are founded, until the errors, if any, be legally corrected.
The well known accuracy and care of the late Chief Justice, who, at the April term of the Court, 1855, gave leave to enter, of record, a discontinuance of the petition against Mary Larrabee, render it highly improbable that he should have permitted such an improvident entry of record to be made on the plaintiff’s motion, (the respondent being out of Court, *206for the judgment had expelled her,” Ham v. Ham, before cited,) as would vacate the verdict and judgment which she had previously obtained; and, upon inspection of the record, ■we are satisfied that the discontinuance entered had no such effect.
: The records of the whole case must be considered together, ¡and they present a clear, unambiguous narrative of the proceédings — they show, that the first count in the petition was finally adjudicated upon and disposed of in April, 1854,. and that the respondent was then entitled to execution for her costs, and that the only petition against'Mary Larrabee, which remained pending, was for the partition, which had been ordered by the Court, of: the. land; described in the-second count in ■the petition;
Having failed to obtain what they sought by the first count in their petition, the petitioners might have thought that a partition of- the land- claimed . in the second count was not worth the expense of it,-and they had a legal right to discontinue any further proceedings, but the discontinuance could be only of that which was then pending.
- -A discontinuance cannot be predicated of that which has been previously- concluded.
■ When they had leave to discontinue their petition against Mary Larrabee, they bad no petition against her, except only for partition of-the land described in the second count of the original petition. The first count had, been previously finally disposed of, ¡and so it appears of record.
■ The plea -in bar disclosed a valid defence against the petitioner’s claim-under the first count in his petition, which was erroneously, excluded. Exceptions sustained.
Tenney, C. J., concurred in the result. May, G-oodenow, and Davis, J. J., concurred.