
    James G. Pinner & al. v. Edwards, Administrator of Price. Samuel Overfield v. Alexander Henderson.
    November, 1828.
    Dismissal of Sult — Damages.—Tbe damages of five dollars, given by tbe A ct of Assembly, in case of non-suits, ought to be awarded in all cases of dis-missions, and discontinuances, produced by a voluntary abandonment of tbe cause by tbe Plaintiff, after tbe Defendant’s appearance, whether in tbe Office, or in Court, and such dismissions ought to be entered up as non-suits.
    Same — Same—Failure to Secure Costs. — But tbe dis-mission of a suit for a failure to give security for costs, is not such a voluntary failure to prosecute, as authorises this Judgment.
    Retraxit — Damages.—In the case of a Betraxit, these damages ought not to be awarded.
    The first of these cases was adjourned to this Court by the Superior Court of Law for Surry County. The Plaintiffs appeared by Attorney, and dismissed their suit, which was an action on the case; whereupon the Defendant, by his Counsel, moved, the Court to enter a non-suit in the case,, and award him five dollars for the same, besides his costs. The Court adjourned to this Court the following question:' “Whether the Plaintiff, after an appearance, or issue joined, as in this case, in any action, is entitled to dismiss it without-paying to the Defendant, five dollars beside his costs?”
    *The second case was adjourned by the Superior Court of Wood County. The Defendant, in an action of Covenant,, appeared in Court at the April Term, 1828, and on his motion, an order was entered, that, it appearing to the satisfaction of the-Court that the Plaintiff was not an inhabitant of this State, the suit be dismissed at the next Term, unless security for the payment of such costs and damages as may be awarded the Defendant, and also of the fees which will become due from the Plaintiff to the officers of the Court, be given with the Clerk within sixty days from this time. At the September Term, 1828, the-following entry was made. “This cause-having been dismissed for want of security for costs, and the Plaintiff failing to set aside said dismission by giving such security, the same is confirmed. Therefore, it is considered by the Court, that the cause be dismissed, and the Defendant, by his Attorney, prays Judgment against the Plaintiff for rive dollars besides his costs, as and for a non-suit, arid the Court being of opinion that the seventy-second section of the “Act for the limitation of actions, &c.” ought to be settled by the General Court, adjourns to that Court the following questions: 1st. Ought five dollars damages to be taxed on every Office dismission, or such only as are entered up as non-suits? 2d. If the Plaintiff dismisses, or discontinues his cause, ought damages to be given as for a non-suit?”
    
      
       The principal case is cited in Railway Co. v. Long; 26 W. Va 699; Henry v. Ohio River R. Co., 40 W. Va. 237, 21 S. E. Rep. 866.
    
   SUMMERS, J.

delivered the opinion of this Court.

These cases, presenting questions of practice, arising under the 28th and 72d sections of the “Act for the limitation of actions; for preventing frivolous and vexations suits: concerning Jeofails, and certain proceedings in civil cases,” were considered together.

The seventy-second section, in general terms declares, that “if the Plaintiff shall at any time fail to prosecute his suit, he shall be non-suited, and pay to the Defendant, or Tenant, besides his costs, five dollars.” -'This provision, justD’im-posing a penalty on the Plaintiff for vexing his adversa^' with a suit, which is afterwards abandoned, and giving some remuneration to the Defendant, for the expense and trouble to which he has been exposed, extends, in our opinion, to all cases of a 1 voluntary desertion of the cause by the Plaintiff after the appearance of the Defendant, whether that desertion shall happen in a failure to declare; to answer his adversary in any of the subsequent stages of the cause before issues are formed; or shall be occasioned by the dis-mission, or discontinuance of the suit after an appearance, in all which cases, Judgment of non-suit should be entered for the five dollars given by Daw.

When the cause is dismissed on failure of the Plaintiff to give security for the costs, a majority of the Court is of opinion, that it is not a voluntary failure to prosecute the suit, but is rather the result of an obstruction to the progress of the cause, occasioned by the act of the Defendant, and which the Plaintiff may not have it in his power to overcome. Another reason for this difference is, that the twenty-eighth section of the Act before referred to, does not in terms require such dismis-sions to be entered as non-suits and they are not within the reasons of the seventy-second section.

To the rule before adverted to, there will perhaps be found an exception in the case of a Retraxit. There, it is true, that the Plaintiff also voluntarily abandons his cause, but as he goes further, and admits that he has no cause of action, he entitles the Defendant to a Judgment as beneficial to him, as if rendered on a general verdict in his favor. The Court can, therefore, perceive no good reason for giving damages in the one case, which the Daw does not warrant in the other. To do so, would be to compel a Plaintiff, willing to submit to a final Judgment in favor of his opponent, to incur the useless expense of impannell-ing a Jury, for the sole purpose of avoiding the amercement. A non-suit, is not a final disposition of the cause: the ^Plaintiff may commence it anew. A Retraxit is a final disposition of it, and the Plaintiff cannot again commence his action. There is, therefore, good reason why in the former case, the damages should be allowed, and not in the latter.  