
    Ralph Coffman vs. Alfred S. Brown.
    It is no doubt the law that a judgment upon a retraxit is as much a bar to another suit for the same cause, between the same parties, as a judgment after verdict.
    It is the admission by the plaintiff on the record, that he has no cause of action, which constitutes the bar, and operates as an estoppel.
    A plea “ that a suit had been previously brought for the same cause of action between the same parties, in which the plaintiff, in his own proper person, came into court, and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdrew himself, whereupon it was considered by the court, that the plaintiff should take nothing, and that the defendant go without day,” does not show a retraxit, nor a bar to the plaintiff’s right of action.
    Error, from the circuit court of Yalabusha county; Hon. James M. Howrey, judge.
    This was an action of assumpsit, brought by Alfred S. Brown against Rowland T. Bryarly and Ralph CofFman on a promissory note for six thousand four hundred and forty-five dollars, to the May term, 1842, of the circuit court of Yalabusha county. At the return term, the defendant, Ralph CofFman, filed a plea in the following words, to wit: “And Ralph CofF-man, the defendant, comes and defends the wrong and injury, when &c., and says the said plaintiff ought not to have or maintain his aforesaid action thereof against the defendant, because he says that heretofore, to wit, at the June term, 1840, the said plaintiff impleaded the said defendant in the district court of the United States for the northern district of Mississippi, for the non performance of the same identical promises and undertakings in the said declaration mentioned, and such proceedings were thereupon had in that court; that afterwards, to wit, in the said last mentioned term, the said plaintiff came into the said court in. his own proper person, and confessed that he would not further prosecute his said suit against the said defendant, but from the same altogether withdraw himself; therefore it was then and there considered by the said court, that the said plaintiff should take nothing by his said declaration, but that he should be in mercy, &c., and the said defendant should go thereof without day,” &c. To which plea, the plaintiff replied as follows, to wit: “And the said plaintiff for replication to the plea of the said defendant, Coffman, says he was impleaded in the district court of the United States in manner and form as set forth in defendant’s plea, but that he did not come into court in his own proper person, and confess that he would not prosecute his said suit against the said defendant any farther, and that he did not altogether withdraw from the same; and of this he puts himself upon the country,” &c. The defendant demurred to the replication, and the court held that the demurrer went back to the defendant’s plea, and sustained the demurrer to the plea, and a judgment of respondeat ouster was awarded; but the defendant refusing to answer over, a judgment final was entered against the defendants. The defendant, Coffman, brought up the case to this court by writ of error.
    
      Waul, for plaintiff in error.
    The counsel for plaintiff insists that there was error in the judgment of the court below in overruling the demurrer to plaintiff’s replication.
    If the plea is good, the replication is defective, as it attempts to contradict the record, which cannot be permitted, and as the plea offers to verify by the record, the only traverse admissible is “ nul tiel record."
    
    The cause then, in its most favorable position for defendant, must be considered as upon demurrer to the plea of retraxit, which differs from “ nolle prosequi,” “dismission,” “non suit,” “discontinuance,” and all other judgments against the plaintiff in this : It is the solemn renunciation of the plaintiff in his own proper person in open court, and is a bar to all other actions of a like or inferior nature. 3 Black. Cora. 29; 6 Com. Dig. PI. § 2. $ 4, 278, 280; 1 Dun. Prac. 494; 2 Arch. Prac. 220; 2 SeL Prac. 337; 10 Johns. Rep. 221; Evans v.. McMahon, 1 Ala. Rep. (new series) 47; Bowden v. Horne, 7 Bingh. 716 ; Hoffman v. Porter, 2 Brock. 156; Lambert v. Sanford, 2 Black. 137; 1 Pick. 371; 20 Eng. Com. Law, 302; Bridge et al. v. Sumner, 1 Pick. 371. And the plea being good, the court will render the judgment that should have been rendered below, and will award it in favor of the defendant.
    Should it be considered that the plea is good, and the replication well pleaded, or the demurrer defective, the judgment should have overruled the demurrer, and awarded a rejoinder, but the plea being good, and the replication defective, the judgment will be reversed, and the demurrer sustained, and judgment final for the defendant in this court.
    
      A. C. Baine, for defendant in error.
    Without entering upon the proposition, whether the technical retraxit would be maintained at this day, when our statute of jeofails and our whole system of practice discourage all the nice chicanery of the common law, which prevented the merits of a case being heard — it will at least be conceded that a plea so purely formal must be pleaded with all the peculiar certainty that a plea of “ former recovery ” should be. The plea of “former recovery” must not only allege the term at which it was had, but also the very day in the term, which the judgment was rendered. This plea .does not do so. It merely states, generally, the term, without specifying any day of the term.
    In the second place, be the plea good or bad, the judgment of the court must be sustained. For it' has been decided in this court, until it has become an axiom, that a right judgment, founded on a wrong reason, cannot be reversed. Now the replication is undoubtedly good on general demurrer. It merely negatives the plea, thereby doing exactly what the defendant proposes to do, namely, putting him on the proof of its allegations. Indeed, the moment it is conceded the replication ought not to have put the facts of the plea in issue, but demurred to them, that moment the plea is admitted to be faulty, and the judgment of the court unquestionably correct.
    The replication concludes to the country. This I believe, if now a fault at all, never was one which could be reached by a general demurrer. But if specially demurred to, I do not think, in the aspect of the cause, it could have been sustained. Why ? Because the plea, in its substantive matter, necessarily directed the mode of trial, when the facts of that plea were put in issue. And any slip of the pen of the pleader, after having put them in issue, could not have varied the mode of the trial.
    The facts in issue are what the court is to look to, in directing the mode of the trial, not to what the party (or either of them) proposes as to that mode.
   Mr. Justice Clayton

delivered the opinion of the court.

The only question in this case is as to the effect of this plea of the defendant; that a suit had been previously brought for ■the same cause of action, between the same parties, “ in which ■the plaintiff in his own proper person came into court, and confessed that he would not further prosecute bis said suit against the defendant, but from the same altogether withdrew himself,” whereupon it was considered by the court, that the plaintiff should take nothing, and that the defendant go without day.” Upon demurrer, judgment was rendered against the plea in the court below.

It is insisted that this proceeding, set up as a defence in the plea, amounted to a retraxit, and that the present suit for the ■same cause of action cannot be maintained. It is no doubt the law that a judgment upon a retraxit, is as much a bar to another suit for the same cause, between the same parties, as a judgment after verdict. The only question therefore is, whether this be a retraxit.

The older authorities are not very clear in their statement of what amounts to a retraxit. In a late case, the rule is thus very explicitly stated. “In a retraxit, the plaintiff voluntarily .abandons his cause, and goes farther, he admits that he has no cause of action.” 6 Rand. 677. It is this admission upon the record, that he has no cause of action, which constitutes the bar, and operates as an estoppel to the party.

On the same subject, the supreme court of the United States employs this language : “ The nature and effect of a nolle pros-equi, was not well defined or understood in early times, and the older authorities involve contradictory conclusions. In some cases it was considered in the nature of a retraxit, operating as a full release and discharge of the action, and of course as a bar to any future suit. In other cases it was held not to amount to a retraxit, but simply to an agreement not to proceed farther in that suit, as to the particular person or cause of action to which it was applied. ■ This latter doctrine has been constantly adhered to in modem times, and constitutes the received law.” Minor v. Mechanics Bank of Alexandria, 1 Peters, 74,

The facts pleaded in this case do not, in our view, amount to a retraxit, or to an acknowledgment upon the record by the plaintiff, that he has no cause of action. They constitute only a dismission of the suit, or a nolle prosequi.

The judgment is therefore affirmed.  