#### HENRY BOND vs. WILLIAM McNIDER & AL.

June 1843

An entry in a suit, “ dismissed at the costs of the defendant,” is not to be construed as a retraxit, or a j udgment upon the merits, so as to bar another action for the same cause. It is simply a judgment of discontinuance, whore the court erred in ordering the defendant to pay the costs, or where such order was made by consent of the parties.

No judgment, but one on a retraxit or on the merits, will bar a subsequent action.

The entry, that the costs.are to be paid by the defendant, is not even prima facie evidence to be left to the jury, of an accord and satisfaction.

The case of Carter v Wilson, 2 Dev. & Bat. 276, cited and approved.

Appeal from the Superior Court of Law of Gates county, at Spring Term, 1843, his Honor Judge PearsoN presiding.

This was an action of debt upon a note under seal, for $930 80. The defence relied on, was the plea of a former trial and judgment for the same cause of action, to whicii the plaintiff replied, anul tiel record and there was also a plea of ‘'accord and satisfaction.” In support of the first plea, the defendant offered a record of a suit from the County Court of Cnowan, from which it appeared that an action had been instituted by the plaintiff against the defendants, in that court, upon a note, which was admitted' to be the same note now sued on. In that case, the plea of “ release” had been pleaded, and then there was an entry, “dismissed at the defendants’ costs.” An execution thereupon issued for the costs, and was satisfied by the defendants. The court was of opinion that the entry, “ dismissed at the defendants’ costs,” did not support the plea of former trial and judgment, and could not be taken as the act of the court, because upon a trial either by verdict or upon the admission *441of the parties, the court had no authority to enter such judgment. If the court dismissed the suit, the defendants were entitled to recover their costs, and could not be made to pay costs ; so that the entry could be no more than an agreement of the parties. The court was also of opinion, that, supposing the pleadings proper to present the question, whether a dismission of the suit by agreement, at the costs o# the defendants, amounted to a retraxit, so as to conclude the plaintiff from- bringing another suit, the entry could not have that effect, for it did not amount to an admission, either expressly or by implication, that the plaintiff had no cause of action, but it was amere agreement not to prosecute that particular action. Upon the other plea, the court was of opinion that the dismission of the former suit and the payment of the costs by the defendants, was not sufficient evidence to justify the jury in* finding that there was an “ accord and satisfaction.” The jury found a verdict for the plaintiff, and a new trial having been moved for and refused, and, judgment being rendered pursuant to the verdict, the'defendants appealed.

•#. Moore for the plaintiff,

cited, as to the plea of “accord and satisfaction,” the case of Carter v Wilson, 2 Dev. & Bat. 276, and 1 Selw. N. P. 96, 97 and 98; and as to the plea of former judgment, 3 Thomas Ooke, 499, 500, and Carter v Wilson, ut supra.

Kinney for the defendants.

Daniel, J.

At common law, there is no form of an entry in the books of a judgment dismissing an action. Every judgment against a plaintiff, is eiiber upon a retraxit, non pros., nonsuit, nolle prosequi, discontinuance, or a judgment on an issue found by the jury in favor of the defendant, or upon demurrer. The inducements or preliminary recitals in these several kinds of judgments are variant, but the conclusion in each is always the same; it is as follows ; *442« Therefore it is considered by the court that the plaintiff take nothing by his writ, and that the defendant go without day, and recover of the plaintiff his costs, &c.” If the en- ^ abovemeiitioned could be considered as a retraxit, or a final judgment on the merits, it would bar the plaintiff’s action ; otherwise it would not. A retraxit it cannot be, for that is al ways made in person in open court, when the trial is called. 2 Arch. Prac. 250. 3 Thomas Coke, 500. The issue upon the plea of “ release” in the County Court, was not tried by a jury; so that the said entry could not be considered a judgment upon a verdict. The entry does not shew that the merits of the cause passed in rem-judicatam. We know of no reported case like, it in this State. We must, however, consider it as nothing more than a judgment of discontinuance, where the court erred in ordering the defendants to pay the costs, or it is such a judgment, with the consent of the parties that the defendants should pay the costs. Carter v Wilson, 2 Dev. & Bat. 276. It is therefore no bar to this action. Archb. Prac. 235. Maul. & Selw. 153.

Secondly ; in the absence of all other proof, we think that the entry ol the payment of the costs by the defendants was not even prima facie evidence, to be left to the jury, of an accord and satisfaction. The above cited case of Carter v Wilson, supports this opinion. The judgment must be affirmed.

Per Curiam, Judgment affirmed.