*[The reporter was not present at this term, and is indebted to the minutes of a highly respected friend at the bar for the arguments of the counsel, and, in some instances, for the decision of the Court, in the cases here reported.]*

#### James Gilbreth *versus*Caleb Brown and Others.

Where a writ was served, and the action entered in the Court of Common Pleas, and continued several terms, the writ being lost, the court ordered a misentry to be entered, — an appeal to this Court was sustained, and the defendant haa judgment for his costs.

This was an appeal from the Common Pleas, where an action had been pending three terms between these parties, and, the writ neing lost, that court had directed the clerk to record the action as *167a misentry. *Gilbreth,*who was defendant in the action, filed a motion for costs, which being overruled, he appealed to this Court, and now prayed to be allowed his costs.

*Williamson,*for the appellant,

contended that the service of the writ, and entry of the action, gave the defendant a right to costs, if the plaintiff failed in the action in any manner whatever; as the defendant, in such case, was the * prevailing party. This right is expressly given by *Stat.*1784, c. 28, § 9; and the court below had no authority to dismiss the action without costs. It was not the default of the defendant that the writ was lost, and he ought not to be prejudiced by the plaintiff’s negligence

*White,*for the respondents,

contended that no judgment could be rendered for costs, without a process appearing to the Court, on which to found such judgment. The mere names of parties on the docket furnish no grounds for a judgment. It was no fault of the plaintiff’s, as suggested on the other side, that the writ was lost. The clerk, after the return of the writs, has the legal custody of them; and if they are lost, the plaintiff ought not, in any case, to be holden for costs. The order of the court below, therefore, to make the action a misentry, was the most proper disposition that could be made of it.

Wilde, J.,

delivered the opinion of the Court. By the statute of 1784, c. 28, § 9, when any plaintiff shall, in any stage of his action, become nonsuit, or discontinue his suit, the defendant shall recover his costs against him ; and in all actions, the party prevailing shall be entitled to his legal costs against the other. By this statute, the defendant is entitled to his costs on a discontinuance of the suit; nor is it within the discretion of the Court to disallow a motion to that effect.

Then, how stands the present case ? The writ having been legally served, the action was duly entered, and stood continued for several terms; when the plaintiff, discovering that he could not proceed in his action, by reason of the sheriff’s neglect in not making return of the writ, moved to withdraw the action from the docket, which was allowed. This we consider as a discontinuance of the suit, within the true meaning of the statute. This is the real nature of the motion, which cannot be changed or disguised, whatever may be the phraseology adopted for that purpose. If the plaintiff, after entering his action, refuses to prosecute it, and this appears on record, it will amount to a discontinuance, * according to the intendment of the statute. A *retraxit*would be so considered, although, technically, it varies from a discontinuance.

it has been thought hard to mulct the plaintiff in costs, without *168any fault or neglect appearing on his part. But there is no hardship in the case; for he has his remedy against the sheriff, whose duty it was to return the writ; or against his attorney, if, by his neglect, the writ has been lost ,• or against the clerk, if it has been returned to him, and, by his negligence, it has been mislaid. If the plaintiff had failed to enter his action, the defendant, on complaint, would have been entitled to costs; and the non-return or loss of the writ would have been no objection to his recovery in such case; nor ought it to be in the present case, which, as it respects any supposed hardship on the plaintiff, stands on the same footing.

The defendant has no agency in suing out the writ, or in selecting the officer to serve it. The writ, when served, according to common practice, is returned to the plaintiff’s attorney ; and if it should disappear, the defendant ought not to be prejudiced. The expenses ought rather to fall on the plaintiff, even if he had no indemnity.

*Costs for the appellant.*