Supreme Court of New South Wales

In banco, 26 March 1832

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 164] [In trespass to land, a verdict being found for the Defendant the Court in Banco allowed the Plaintiff on motion to take nonsuit.]

Irving v Hunt

This was an action of trespass tried before Dowling J.  The Assessors found a verdict for the Defendant   Wentworth moved for a new trial or for leave to enter a nonsuit.  The Court refused the new Trial and Norton contended that as the Assessors had found for the Defendant upon the merits the Plaintiff was not entitled to enter a nonsuit this being an action of trespass founded merely on a possessory right and no title to the land being concluded by it.  The verdict in this case would be no bar to another action for another Trespass.

Sed per Curiam  As the [p. 165] Plaintiff had a right at the trial finding the case going against him to have a nonsuit instead of a verdict against him we see no reason why he should not now be entitled to have a nonsuit if he thinks proper and go on with the same action with better evidence.