
    P. EAGIN and COMPANY v. SAMUEL MUSGROVE.
    An entry of the words “settled and dismissed, costs paid into office, received tax fee, J. L. H. Atr’y.,” made by a plaintiff upon the appearance docket, before the return term of the writ, does not amount to a retraxit; and an order at the return term, to strike it out, is proper.
    Repievin, before Buxton, J., at Spring Term, 1866, of the Superior Court for New Hanover county.
    The facts are sufficiently stated in the opinion of the court.
    No counsel in this court, for the plaintiff.
    Person, for the defendant.
   Reade, J.

The plaintiff sued out a writ of replevin for a flat boat, which was executed, and the defendant failing to give bond, the boat was delivered to the plaintiff.

Before the return term, the plaintiff caused to be entered on the appearance docket the following : Settled and dismissed, costs paid in office, received tax fee, J. L. H., Att’y.”

At the appearance term, the defendant moved for judgment against the plaintiff, on the bond executed at the time of suing out the writ, upon the ground that the aforesaid entry was a retraxit.

The plaintiff asked leave to strike out the aforesaid entry, as having been inconsiderately and unadvisedly made, and his Honor allowed it to be stricken out.

The defendant, supposing that his Honor had no power to allow the entry to be stricken out, prayed for an appeal, which was granted.

A retraxit is when the trial is called on, by a plaintiff’s coming in person into court and saying that he will not proceed in it2 Hellon’s Practice, 46, A retraxit cannot be entered before the plaintiff hath declared, and if entered before, it hath but the effect of a nonsuit7 Bac. Ab., “Nonsuit,” 215. “Where a plaintiff is demanded, and doth not appear, he is said to be nonsuited.” Ibid.

It is well settled that a court has full power over its records during the term, to strike out, alter or amend. So that, if the entry had been made in court, and with the sanction, or, as the judgment of the court, it was competent for the court to order it to be stricken out. But, in fact, the entry was not made in court, nor during the term of the court. Nor had it any time the sanction of the court. It was an entry upon the docket in vacation, which neither the plaintiff nor any one else had the right to make. And, therefore, it was not only within the power, but it was the duty of the court to strike it from the records. It is true that the entry being there, the court might, upon application of the plantiff, have given its sanction to it; and then it could have been regular.

It may be proper to remark that the entry has neither the form nor substance of a retraxit. A retraxit is a “ renunciation ” of his suit by the plaintiff. The entry here, is, that it was “ settled,” which implies that it was settled by the parties. That being so, we find the defendant coming into court, and refusing to abide by the settlement, and moving for judgment against the plaintiff. It was manifestly just, therefore, that the court should allow the note or memorandum of the settlement, which the defendant had repudiated, to be stricken from the records.

Per Cdriam. Judgment affirmed.  