#### Worke v. Byers.

V I From CabaiTus. J

When a party plaintiff voluntarily goes into Court and enters on the record that he is nonsuits it is not a nonsuit, but a retraxit, and plaintiff cannot appeal thereon.

In proceedings under a statute, in the nature of penal actions, by warrant before a magistrate, e. g. turning a road, the warrant must refer to the statute, in such a manner that defendant may certainly know what he is called to answer.

This was a suit for a.penalty, originating by warrant before a magistrate, to which it was alleged the defendant bad subjected himself by turning a public road. The warrant charged the defendant with “ altering and changing, and stopping Or shutting up, the old road, ia his, said Byer’s land, near the natural bridge branch on the public road from Statesville to Torrence’s, contrary to law.” On the tidal before Mash, Judge, it was proved, among other matters, that the public road at the natural bridge branch was not obstructed, but that the defendant’s fence complained of was between fifty and a hundred yards from the branch where the road crossed it.

On this part of the case, the jury was informed, that, as the plaintiff had given to the obstruction of which he complained, a particular location, he must prove it to exist as charged in Ms warrant, and that the proof was matter of fact to be judged of by them. The jury found a verdict for the defendant, and a new trial having been refused, the plaintiff appealed.

J. Martin, for the defendant,

contended, that it was properly left to the jury, as matter of fact, whether the road was altered or obstructed at the place specified in the warrant. Roads might be turned and obstructed at various points; each turning constitutes an offence; certainty in locating the spot is therefore important: it *229is as necessary in cases of this kind to fix the loans in quo, as it is in cases where a penalty is given for an omission of duty within a certain time, to charge the offence within the prescribed time; a misrecital in such case is fatal. (Bac. Mr. Actions qni tarn.) So, also, insetting out a statute in a suit for a penalty, and inserted in the declaration instead of or, so as to change the sense, is fatal: such is the precision required in penal actions. (6 Term R. 771.) But a fatal objection may be made in this case, that the warrant does not set forth or refer to any statute, by which the penalty has accrued. (1 Hawks 194.)

There Avere three cases between the same pai*ties, similar in all respects to the first, Avith this additional circumstance, that during the pendency of the suit in the County Court, the plaintiff, in his OAvn proper person, came into Court and entered a nonsuit, and then prayed an appeal to the Superior Court, which was granted. And in this case,

J. Martin, after taking the same objection, founded on t Hawks 194, as before, objected also, that plaintiff had voluntarily entered a nonsuit, as the record terms it, and that it Avas a case in which the plaintiff could not appeal to the Superior Court. In truth it was not a non-suit, because that can only be entered in the absence of the plaintiff.

This amounts either to a nol. pros, in which case the entry at large Avould be, that the plaintiff is unwilling to prosecute, and that the defendant may depart without day; or it is a discontinuance, which the plaintiff may enter when he pleases, but must afterwards proceed de novo, if he proceed at all; or it is a retraxit, when the entry is, that he is unwilling to prosecute the defendant farther, but from thence entirely withdraAvs himself. In all these cases the defendant is entirely out of Court by plaintiff’s voluntary act, and can no more be proceeded against, in that suit; and he read from Selwin’s JV*. ,P. *230336, 7. 463. referring to the authorities which are there on the points above. ■

Tatior, Chief Justice,

delivered the opinion of the Court.

The eight caáes between these parties, are brought to recover penalties for the obstruction of a public road; the same obstruction having been continued for a considerable period, and the penalties claimed being at the rate of five pounds per month. In four of the suits, the plaintiff entered a nonsuit in the County Court, and then immediately appealed from the judgment; and the prior question is, as to the regularity of .this practice. Accor-düig to the principle on which a nonsuit is founded, it supposes an absence and default in the plaintiff, and that he does not pursue or follow his remedy as he ought to do, and thereupon a nonsuit, or non prosequitur, is entered, and he is said to be nonsuit; and for this he was, at common law, liable to an amercement. It may be assimilated, on the part of the plaintiff, to a judgment by default on the part of the defendant. Thus, when a jury are ready to deliver their verdict, the plaintiff is bound to appear in Court in person, or by his attorney; otherwise it cannot be, given, and he, the plaintiff, becomes nonsuit; and there seems to be no way in which a. non-suit can be voluntarily suffered, unless the plaintiff withdraw himself, or fail to answer when called: so essentially does the idea of omission or neglect enter into it. (3 Bl. Com. 296. 316. 376.) And this description of a non-suit is confirmed by the mode of entering up the judgment: ‘‘ upon which the'said A. being solemnly called, doth not come, nor further prosecute his bill against the said B., therefore, &c. (2 Lilly 508.) Although the record states that the plaintiff went into Court and suffered a nonsuit; •yet calling it so cannot make it a nonsuit, against the nature and name of the thing. It comes, however, precisely within the-description and character of a retraxit *231¡is given in the books. If the plaintiff says he will not sue, this is a retraxit; but if he says ho will not appeal, this is not a" retraxit, but a nonsuit. A retraxit cannot be, unless the plaintiff or demandant be in Court in proper person. (2 Danvers 471. 8 Co. 58.) Lord Coke also enters into a particular consideration of the difference between a nonsuit and a retraxit, in his commentary upon Littleton; the substance of which is, that a nonsuit is error after demand made, when the demandant or plaintiff should appear, and he makes a default. A re-traxit is error, when the demandant or plaintiff is present in Court. (Co. Lit, 139 a.) To the same effect is Mr. Justice Blackstone: a retraxit differs from a nonsuit, in that the one is negative and the other positive. The nonsuit is a mere default and neglect of the plaintiff; and, therefore, he is bound to bring his suit again, upon payment of cost; but a retraxit is an open and voluntary renunciation of his suit in Court, and by this he for ever looses Ms action. If any other proof is necessary of the nature and effect of a retraxit, it will appear in the mode of entering up the judgment; “ the said A. B. came into Court, in his own proper person, and confessed that he would not further prosecute his said suit against the said C. D., but from the same altogether withdrew himself.” (3 Chiiiy 477.) It seems impossible, from the authorities, to consider the act done by the plaintiff in this case, in any other light than a voluntary renunciation of his suit, and operating, according to the plain dictates of justice and law, as an impediment to any further prosecution of his actions. In the rest of the cases, there is a fatal defect appearing on the face of the warrants, in their omitting to state that the offence was committed against the act of assembly. It is not a formal, but a substantial rule, that requires a party, who sues upon a penal statute, to apprise the adversary, by some general reference, that he is sued for violating the statute. When a person is sued for a penalty on a statute, it is necessary *232to rehearse the special matter, and say that the action is brought against the form of the statute; otherwise, if it he not a.penal oifence at common law, the Court will not look to see if it he an oifence by statute;—and the defendant has no right to suppose that he is sued otherwise than at common law. He may thus be prevented from making a due defence, which perhaps the law, if he were referred to it, would enable him to make. Saying that he obstructed the road contrary to law, gives him no information; he would naturally inquire, what law? statute or common? A long train of decisions has established the principle; and much as we incline to give a liberal construction to proceedings before magistrates, this is an objection that cannot be surmounted. The case is not to be distinguished from Scroter v. Harrington, (1 Hawks 192.) One of the warrants concludes properly, and might be supported were it not affected by the other objection. The Court is of opinion that there must be judgment for the defendant in all the cases.