Definition
A historical common-law procedural formality by which a court caused a nonsuit to be entered against a plaintiff who had failed to appear or had withdrawn from the proceedings. When a plaintiff—or more commonly, the plaintiff's counsel—perceived that the evidence presented was insufficient to maintain the issue before the jury, the plaintiff would withdraw from the courtroom. The court would then direct the court crier to formally call out or demand the plaintiff's presence. If the plaintiff failed to answer, a nonsuit was entered: the jury was discharged without rendering a verdict, the action was terminated, and the defendant was entitled to be dismissed.
The phrase "calling the plaintiff" thus describes both the procedural act (the crier's formal summons) and the broader mechanism by which a voluntary nonsuit was triggered in open court. The result was not a judgment on the merits but a termination of that particular proceeding, which historically left open the possibility of re-filing.
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Common Confusion
CALLING THE PLAINTIFF vs. NONSUIT: These terms are closely related but not interchangeable. Calling the plaintiff is the procedural ritual that preceded and produced a nonsuit; the nonsuit is the legal consequence that followed. A researcher encountering "calling the plaintiff" in historical records is looking at the mechanism; a researcher encountering "nonsuit" is looking at the outcome. Modern practice has eliminated the calling ritual entirely—nonsuit (or voluntary dismissal) is now accomplished by motion or notice—so "calling the plaintiff" is effectively a defunct procedural term with no modern analog as a distinct act.
CALLING THE PLAINTIFF vs. ALLOCUTUS: Burrill and Rapalje both flag potential confusion between "calling the plaintiff" and "calling upon a prisoner" (allocutus). These are entirely unrelated procedures. Allocutus concerns the court's address to a convicted criminal before sentencing; calling the plaintiff concerns civil proceedings and nonsuit. The superficial similarity in language has occasionally caused misreading in older reports.
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Why It Matters in Research
This term is essentially extinct in living practice. A researcher will encounter it only in pre-twentieth-century case reports, particularly English decisions and early American state court opinions. Several navigational points:
The phrase "let the plaintiff be called" appears verbatim in early American state reports, as Bouvier notes. Encountering this phrase in a nineteenth-century opinion does not signal an unusual ruling—it is formulaic language indicating a nonsuit was entered. Do not treat it as substantive legal reasoning.
The ritual's disappearance tracks the broader reform of common-law pleading and procedure through the Field Code era and later the Federal Rules of Civil Procedure. By the time the Federal Rules took effect in 1938, the calling ceremony had long since been replaced by simpler mechanisms. State court reforms followed at varying paces, meaning the term lingers in state reports at different historical cutoff points depending on jurisdiction.
When researching nonsuit doctrine across historical periods, the presence or absence of "calling the plaintiff" language can help date a decision or identify the procedural regime under which it was decided. Its presence suggests a strictly common-law procedural environment; its absence in an otherwise early decision may indicate code pleading reforms had already taken hold.
The connection to nonsuit doctrine is the productive research path. Calling the plaintiff is an entry point; the substantive doctrine researchers need is nonsuit—its availability, its effect on the merits, and the plaintiff's right to refile. Follow that thread rather than the ritual itself.
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Historical Dictionary Support
The three source dictionaries align closely and without meaningful conflict. Black's, Bouvier's, and Burrill's all define the term as a formal preliminary to nonsuit, emphasizing the withdrawal of the plaintiff, the crier's demand, and the discharge of the jury. Burrill is the most procedurally detailed, specifying that the formality occurred "on the trial of a cause before a jury" and that it was specifically an English practice. Bouvier adds the useful note about the phrase's appearance in early state reports.
Rapalje & Lawrence, while not among the primary sources, corroborates: calling the plaintiff was "the old-fashioned term for a nonsuit," citing 3 Blackstone's Commentaries at 376—a genuine and verifiable reference. Blackstone's treatment provides the English common-law foundation for the procedure and is the appropriate starting point for any deeper historical inquiry.
None of the historical dictionaries address the term's disappearance or its relationship to code pleading reforms, which is expected—they were written during or before the period of those reforms. A researcher relying solely on these dictionaries would understand the ritual but would need to look elsewhere to understand why it vanished and how its functions were absorbed into modern voluntary dismissal practice.
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Jurisdictional Note
The procedure was an English common-law formality and was transplanted into American courts operating under common-law rules. Its persistence varied by state: jurisdictions that adopted code pleading earlier (New York from 1848, for instance) moved away from the ritual sooner. English and early colonial American decisions are the primary sources where the term appears with any frequency.
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