Webster v. Bridgewater , 63 N.H. 296 ( 1884 )

The granting of the motion was not erroneous. The rule in this state is, that a plaintiff, before opening his case to the jury, may become nonsuit as a matter of right (Farr v. Cate, 58 N.H. 367); and the rule also applies to any other tribunal which is equivalent to a jury. Fulford v. Converse,54 N.H. 543, 544. Such being its extent, it cannot be fairly held that the rule does not include highway petitions to the court, in which the petitioners stand in the light of joint plaintiffs (Parker, J., in Burnham v. Steele, 8 N.H. 184), and the commissioners fill the ordinary place of the jury. And in principle, also, there is no, thing to distinguish a petition for a highway from other petitions, or actions, in which several unite in a common object, for there is no legal ground for the position that the relation of highway petitioners to each other is different from that of co-plaintiffs generally.

In this view, it was the right of the dissatisfied majority of the petitioners, unless estopped by some act or agreement beyond what appears, to become nonsuit at any term of the court after the entry of the petition and before the commencement of its hearing by the commissioners, and thereby bar its further prosecution; and therefore it is not a meritorious cause of complaint by the minority that the majority were permitted to withdraw without affecting the petition, and on the payment of costs.

Whether the amendment was authorized by s. 17, c. 226, Gen. Laws, allowing the name of a plaintiff or a defendant to be struck out before the evidence is closed or the case submitted, on paying his costs to that time, is immaterial. Justice required that the majority of the petitioners should not longer be compelled to share the burden and expense of the litigation against their will; and this, of itself, was amply sufficient to authorize the amendment. Stebbins v. Ins. Co., 59 N.H. 143.

Exceptions overruled.

ALLEN and BINGHAM, JJ., did not sit: the others concurred.