
    Benjamin Williams et al. vs. The Northern Bank of Mississippi.
    The special plea of retraxit is a good plea under the practice of this state ; and it is therefore error to strike such a plea out-arid treat it as a nullity.
    In error from the circuit court of Yalabusha county ; Hon. Benjamin F. Carnthers, judge.
    The Northern Bank of Mississippi sued Benjamin Williams, Hugh Torrance, Sterling Harrison, Josiah Deloach, and Harvey H. Means, the former as drawer, and the latter as indorsers of a protested bill of exchange. Besides the plea of non as-sumpsit, the defendants, Williams, Torrance, and Harrison, interposed the following special plea:
    “ And for a further plea in this behalf, the said defendants, Benjamin Williams, Hugh Torrance, and Sterling Harrison, by their attorneys, come and defend the wrong and injury, when, <fcc., and say actio non, because they say that heretofore, to wit, at the November term, 1842, of the court aforesaid, on the 17th day of said month, they the said defendants named in. this plea, impleaded the said Josiah Deloach, who was then and there the holder of the said bill of exchange in the plaintiff.’s declaration mentioned, by virtue of the indorsement of the said plaintiff of the said bill to the said Josiah Deloach in the court aforesaid, for the non-performance of the same identical promises and undertakings in the said plaintiff’s declaration mentioned, and such proceedings were thereupon had in .the said court, that afterwards, to wit, in the said last mentioned term, the said Josiah Deloach, in his own proper person, came into the said court, and confessed that he would not further prosecute his said suit against the said defendants in this plea named, but from the same altogether withdrew himself; therefore it was then and there considered by the court, that he the said Josiah Deloach should take nothing by the said bill, but that he and his pledges to prosecute should be in mercy, &c.; and that the said defendants should go thereof, without day, as by the record and proceeding thereof, all remaining in the court of the bench aforesaid, more fully and at large appear; which said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void. And this the said defendants by the record and proceedings in the said court, are ready to verify. Wherefore, &c.”
    On motion of the plaintiff’s attorney, this plea was stricken from the record, and the defendants excepted, and prosecute this writ of error.
    
      Fisher, for plaintiff in error.
    I show, that this plea has always been considered a good bar to a suit. The court is referred to 3 Chitty’s Pleadings, 930, as to form. As to substance, see 3 Bl. Comm. 296 ; 1 Dunlap Pr. 494; 3 Salkeld, 245 ; Bing, on Judgments, 48; Lord Raymond’s Reports, 598; Alabama Reports. The true question to be considered is, whether the plea was sufficient to require a demurrer to point out its defects. If so, the court below erred in striking it out; otherwise demurrers would no longer be tolerated in practice; a motion to strike out a bad plea would entirely usurp their office.
    By the act of 1822, p. 589, sect. 1, H. & H. the defendant was permitted to file as many pleas as he might judge necessary to his defence.- By the act of 1837, p. 596, sect. 35, this right, as to actions like the present, was restrained to the plea of non assumpsit. But by the act of 1838, p. 597, sect. 43, the act of 1837 is repealed. This is the language of the act of 1838: “ It shall hereafter be lawful for the defendant or defendants in any suit, to plead as many pleas in bar of the action as he shall choose, although some of said pleas may be to the party, or to the character of the party suing.”
    
      Snider and Hutchins, for defendant in error.
    1. Whether this decision be erroneous or not, depends upon the question whether the matter pleaded was a simple discontinuance, (most commonly known in our practice and statutes by the name of “dismissal,”) or an actual retraxit?
    
    On looking into the retraxit plea of the plaintiffs in error, the court will discover that the bill of exchange, upon which the judgment now sought to be reversed was rendered, had previously been the basis of an action in the same court, in the name of one Josiah Deloach against the plaintiffs in error and others. It will also further appear, that this case no longer being in court, a new suit was commenced for the same cause of action, in the name of the defendant in error, against the plaintiffs in this court and others, together with Josiah Deloach, the plaintiff in the former action. Now the rule of law is clear, that when an action is misconceived, or in consequence of some defect in the pleadings, or other reason, it cannot be maintained, it may be discontinued, and a new one be instituted. 2 Archb. Prac. 233; Knight’s case, 1 Salk. 329; 2 Stewart & Porter, 319. In this latter case the question of retraxit was distinctly before the court, and overruled.
    2. Again; the court will'observe, that as closely as the forms generally used approximate those of the books, the plea of the plaintiffs in error exhibits a discontinuance, with the exception of the allegation that the act was done in proper person. See. Archbold’s Forms, 129, 551. This solitary allegation, then, is the only one that particularly allies the plea to the ancient and altogether worn-out retraxit plea of the common law courts. But this feature fades into nothing and ceases to be distinctive, when it is recollected that no rule of law forbids a discontinuance in proper person. Taking then the plea as developing the nature of the act done in the former suit, and the circumstances under which it was done, the court, it is believed, can find no error that will justify a reversal of the judgment of the court' below.
    
      William G. Thompson, on same side, for defendant in error.
    
      Retraxit is almost wholly unknown in modern practice. It will be found, on inspection of the early common law writers, that the difference between a nonsuit and a retraxit, in the mode of proceeding, was this : Judgment of nonsuit, at a certain stage of the proceedings, was given against the plaintiff, only in his absence, or on his failure or neglect to prosecute; and judgment of retraxit was given only when the plaintiff came personally into court and withdrew his suit, stating that he desired no further to prosecute. The proceedings required to be pursued by the plaintiff, to take a judgment, in the early practice of the English courts, differs so much from what is now required in our practice, that the judgment of nonsuit in those courts in early times, is not fully analogous to the judgment of nonsuit with us in this country. By the practice with us, plaintiffs may voluntarily and personally take a nonsuit. By statutory provision in this state, the plaintiff may take a nonsuit, which will not be a bar to another action, by precisely such-proceeding as by the early practice in England authorized a judgment by retraxit. How. & Hutch. 616, 623, 624. This works a virtual abolition of retraxit.
    
      ’William Thompson on same side.
   Mr. Justice Thachee

delivered the opinion of the court.

The single question presented in this caséis upon the legality of the judgment of the circuit court in directing a special plea of retraxit to be stricken out of the pleadings as a nullity.

The case of Ralph Coffman v. Alfred S. Brown, decided at this term of this court, recognizes this plea as appertaining to the practice of this state.

The court below therefore erred in its summary disposal of the plea of retraxit in this case, but should have required it to be disposed of or met by an issue according to its merits as a proper plea.

Judgment reversed, and the cause remanded for further proceedings.

Mr. Justice Clayton having been of counsel below, gave no opinion.  