We all agree that the court erred in requiring the plaintiff to elect whether to claim a judgment on a contract or in tort. The result is that, for disobeying an erroneous order, the plaintiff has been nonsuited. In correcting that error ought not the plaintiff to be restored to its former position in court? The answer is that the order, although erroneous, was the law of the case until reversed, and should have been obeyed. But is that strictly true? If the order was not within the jurisdiction of the court, how could it be the law of the case? And was the plaintiff bound to obey it? I suppose the plaintiff had a right to state the facts constituting his cause of action, and call upon the court to render the appropriate judgment. What power then had the court to order the plaintiff to decide in advance what the appropriate judgment was, and elect to claim that judgment only?
Suppose the plaintiff has two separate causes of action stated in different counts; has the court the power to compel him to strike out one of the counts and to claim a judgment *Page 568 only on the other? The case before us and the one supposed seem to me to depend upon the same principle.
If my brother TORRANCE is right, and I am inclined to think he is, that there is no statute or rule of court authorizing a nonsuit in such a case, then unless it is within the general powers of the court, the punishment was unauthorized, and the judgment of nonsuit should have been reversed on that ground.