Evans v. McMahan

COLLIER, C. J. — Though the judgment purports to have been rendered upon a demurrer interposed by the plaintiffs in error, the record does not discover such to have been the state of the pleadings. The defendant in error demurred to the plea, and thus we intend that the legal questions were presented to the Court. The recital in the judgment that the defendant’s demurrer was overruled is obviously a clerical mistake. The entry should, have described it as the plaintiff’s demurrer which was sustained; otherwise the plea would have been held sufficient in law, and required a replication. We feel the less difficulty in making these explanatory intendments, inasmuch as the entire entry is characterised by a want of technical accuracy. We are now brought to consider the-sufficiency of the plea. It alleges a judgment by retraxit against the defendant in an action prosecuted for the same identical cause In form the plea is almost a literal transcript of such a plea as is furnished by Chitty, ■the only difference being in the formal parts, in the insertion of [47] the words, “and dismissed the same;” Chitty merely alleging that “ the said A. B. came into the Said pourt in his own proper person, and confessed that he would not further prosecute his said suit against the said Ck D., but from the same altogether withdrew himself,” &c. The words “and dismissed the same,” cannot affect the plea, they are rendered entirely inoperative by what precedes and follows them, and cannot be understood to make the judgment pleaded, indecisive of the rights of the parties as a judgment of dismissal would be. The judgment set up in the plea is clearly a retraxit, and cannot be otherwise considered. (3. Chitty's Pl. 477.) A retraxit, says Blaekstone, “differs from a non-suit, in that the one is negative, and the other positive: the non-suit is a mere default and neglect of the plaintiff, and therefore he is allowed to begin his suit again upon payment of costs; but a retraxit is an open and voluntary renunciation of his suit in Court, and’ by this he forever loses'his action.” (3. Black. Com. 296.) Mr. Dunlap says a retraxit is as complete and effectual a bar, as if a verdict had been rendered for the defendant, and he can never afterwards commence another action for the same cause.” (1. Dunlap Pr. 494.) It is then clear that the plea of the plaintiff in error was well pleaded, and the matter of it available in law. See 3. Salk., 245; Bing, on Judgments 48; Boote’s Suit at Law 159; 10. Johns. Rep. 221; Cro. Jac. 211; Ld. Raym’s. Rep. 598. The judgment must be reversed, and the case remanded.