#### Coffman and Richardson v. Russell.

Wednesday, February 23d, 1814.

i. Dismission of Suit — Effect.-*—A dismission of a suit, by the plaintiff’s order, is no bar to his bringing-another suit, for the same cause of action. •

a. Same — Rights of Plaintiff. — Quaere, whether, after a verdict for the defendant, and a new trial granted to the plaintiff upon his paying costs, the court may permit the plaintiff to dismiss his suit; and may render judgment, upon such dismission, lor the costs; or whether judgment ought to be entered upon the verdict, on the plaintiff’s refusing to pay the costs of the trial; of which refusal such order to dismiss the suit may be considered sufficient evidence ?

An action of debt on a single bill was brought by John Russell, assignee of James Russell, against Jacob Coffman and William Richardson in the County Court of Shenandoah.

The bail for appearance pleaded the “statute of usury,” for the defendants; to which plea the plaintiff replied generally, and issue thereupon was joined. Jacob Coffman afterwards filed a special plea, charging the usury particularly ; — to which the plaintiff also replied generally. A verdict was found for the defendant, and a new trial granted, on the plaintiff’s motion, upon his paying costs. A second verdict was found, and a new trial granted as before ; “and, (at the same term,) this suit was dismissed by order of the plaintiff : therefore, it was considered, by the court, that the defendants recover against the plaintiff their costs by them about their suit in this behalf expended.”

The plaintiff, afterwards, brought a new suit, on the same ^single bill, in the Winchester district court; whereupon the defendants pleaded the dismission of the former, in bar to the present action ;— averring, “that the plaintiff,- in the said county court, failed to pay the costs of the trial, which was the condition of his having a second new trial of his action aforesaid in the said county court; and that he did not accept to have a new trial of the issue, but waved the saitie.”

To this plea the plaintiff demurred specially ; “1st, because it varies from the record proffered by the defendants; 2dly, because the said plea contains no bar to this action, as it does not appear that there was a judgment, upon the verdict, for the defendants, in the former action ; 3dly, because, if the substance of the plea be good, it is good as a plea of a matter of record sufficient to bar the plaintiff; and therefore the defendants plead double, when, in the same plea, they insist on independent matters in pais ; and that thus the said plea is double, insufficient, not issuable, inconsistent, and wants form.”

The matters of law arising upon the demurrer being argued, the court overruled the plea ; and, upon the motion of the defendants, granted them leave to plead the statute of usury, and continued the cause. At the next term the defendants filed two pleas ; the one setting forth the proceedings in the former suit, and charging, that the plaintiff, in his own proper person, in open court, entered a retraxit of his said suit, whereupon it was dismissed ; and the other charging the usury as before.

To the plea of retraxit, the plaintiff replied, “that there is no such record ;” and, to the plea of the statute of usury, he replied generally. On the trial of the first issue, it was considered by the court, that there is no such record ; “because a dismission by the plaintiff’s order is not a retraxit, as pleaded.” To this opinion the defendants filed a bill of exceptions. A jury, being impanelled to try the other issue, found a general verdict for the plaintiff; and judgment was entered accordingly; from which the defendants appealed.

*The case was submitted by the appellant’s counsel; no counsel appearing for the appellee.

*

 Dismission of Suit — Effect.—Where a plaintiff discontinues his action, the judgment is no more than an agreement not to proceed farther in that suit against that particular defendant. Such j udgment is not a bar to any future action against the same party. Muse v. Farmers’ Bank of Virginia, 27 Gratt. 257, citing the principal case as a direct authority upon the point.

Nonsuit — Retraxit — Distinction between. — A retraxit differs from a nonsuit in that the one (the latter) is negative, and the other (the former) is positive. The nonsuit 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. Hoover v. Mitchell, 25 Gratt. 390, quoting from 2 Tuck. Com. 251, and citing the principal case.

Wednesday, February 23d 1814,

JUDGE ROANE

reported the court’s opinion, as follows :

“The court, (not deciding that it was correct in the county court, in the first action, after a verdict had been found for the defendants, and a new trial granted on condition of the payment of costs by the plaintiff, (which condition not having been complied with by him, the verdict is supposed to have remained in full force,) to permit the plaintiff, under those circumstances, to dismiss his cause, and to render judgment for the costs, only, instead of a judgment upon that *86verdict-for the defendants,)-, is of opinion, that;- such- 'dismission • having been in fact made, by á judgment which is in' full force and unreversed,- and "no judgment having been rendered for the defendants upon the verdict, the dismission and judgment aforesaid form no bar to the present' action ; and that there is no error in'the judgment of the-superior court,- which is therefore affirmed.”.