Lowry v. McMillan

Coulter, J. Seventeen errors are assigned for the purpose of overturning the judgment below; but the counsel for plaintiff in error, with a laudable economy of the time of this court, declined to press upon us any of them except the twelfth. We shall therefore dismiss- all the rest, with this observation, that neither separately nor collectively do they possess weight or substance. The twelfth regards the instruction prayed for by the counsel, to wit: that the discontinuance and withdrawal of the suit between the same parties, No. 76, April Term, 1846, ought to be considered as a retraxit, and a bar to this suit; and that the docket entry and paper filed in that case, cannot be contradicted or explained by parol testimony. The refusal of the court to give this instruction is assigned as the twelfth error. If we regard the record in that case merely as a discontinuance (and the paper filed is to be considered merely as an agreement to suffer a nonsuit), then it affords no bar to the present suit. [163] A technical retraxit has been, and is, almost unknown in the practice of this state. It is where a plaintiff cometh personally into court where his action is brought, and saith he will not proceed in it; and this is a bar to that action for ever: 2 Jacob’s Law Die. A retraxit must always be in person; if it is by attorney it is error: 8 Rep. 58; 3 Salkeld, 245. It cannot be before a declaration, for before a declaration it is only a nonsuit: 3 Leonard, 47; 2 Silby’s Abr. 476. In the case in hand, the plaintiff did^ot go personally into court, and there, was no declaration filed. It cannot, therefore, according to the authorities, be considered as a retraxit; for although the words, “withdraw for ever,” are used in the paper filed, we cannot suppose that the parties had in their mind a legal technical rule, obliterated where it is not worn out, even in the professional mind, merely from the affinity of the word withdraw, to the word retafxit. Withdraw a suit, is an expression used in common parlance, as equivalent with discontinuance. In addition, as no declaration was filed, it could bar nothing, the cause of action being unknown on the record, and this shows the good sense of the doctrine above established: that a retraxit did not exist before declaration filed. The record of suit No. 76, April Term, 1846, was therefore no bar to this suit as a retraxit: But it might have been accompanied with an agreement, which, if made upon a good consideration, would have given it the character of an estoppel, or perhaps a release of this action. It is in evidence that Eliza McMillan signed the paper dated 11th April, 1846, directed to the prothonotary, which paper was filed some time afterwards. There is not the slightest evidence of any consideration being paid the plaintiff, no evidence of any inducement which she had to make the agreement and settlement, but a corresponding agreement on the part of Lowry, to give up certain letters written by Mrs. McMillan’s friend, upon which a prosecution for libel was threatened. Lowry afterwards refused to 'give up the letters, but .the paper was filed, not by Mrs. McMillan or her agent. And the paper was altered by the insertion of the words “for ever” before it was filed, without the plaintiff’s knowledge or consent. The friend of Mrs. McMillan was afterwards indicted, as it appears, and convicted on the letters, and she brought this action. Thus both parties threw themselves back on their original position. This evidence explains the record. A record is entitled to great sanctity in the law. But then it must be an honest record. It is [164] in vain to talk of tlie danger of altering or explaining a record by parol: everything imbued with fraud must give way before credible sworn testimony. On every ground taken, we are of opinion that the record was simply a discontinuance or nonsuit, with no greater or higher import or effect, and that consequently it was neither a bar nor estoppel to this suit. Judgment affirmed.