Opinion
December Term, 1824.
1. When a party plaintiff voluntarily goes into court and enters on the record that he is nonsuit, it is not a nonsuit, but a retraxit, and plaintiff cannot appeal thereon.
2. In proceedings under a statute, in the nature of penal actions, by warrant before a magistrate, e. g., turning a road, the warrant must refer to the statute in such a manner that defendant may certainly know what he is called to answer.
THIS was a suit for a penalty originally by warrant before a magistrate, to which it was alleged the defendant had subjected himself by turning a public road. The warrant charged the defendant with "altering and changing, and stopping or shutting up the old road, in his, (said Byers') land, near the natural bridge branch on the public road from Statesville to Torrence's, contrary to law." In the trial before Nash, J., it was proved, among other matters, that the public road at the natural bridge branch was not obstructed, but that the defendant's fence complained of was between 50 and 100 yards from the branch where the road crossed it.
J. Martin for defendant.
On this part of the case the jury was informed that as the plaintiff had given to the obstruction of which he complained a particular location, he must prove it to exist as charged in his warrant, and that the proof was matter of fact to be judged of by them. The jury found a verdict for the defendant, and a new trial having been refused, the plaintiff appealed.
The eight cases between these parties are brought to recover penalties for the obstruction of a public road; the same obstruction having been continued for a considerable period, and the penalties claimed being at the rate of £ 5 per month. In four of the suits the plaintiff entered a nonsuit in the county court, and then immediately appealed from the judgment; and the prior question is as to the regularity of this practice. According to the principle on which a nonsuit is founded, it supposes an absence and default in the plaintiff, and that he does not pursue or follow his remedy as he ought to do; and thereupon a nonsuit, or non prosequitur, is entered, and he is said to be nonsuit; and for this he was at common law liable to an amercement. It may be assimilated on the part of the plaintiff to a judgment by default on the part of the defendant. Thus, when a jury are ready to deliver their verdict, the plaintiff is bound to appear in court in person or by his attorney; otherwise, it cannot be given, and he, the plaintiff, becomes nonsuit; and there seems to be no way in which a nonsuit can be voluntarily suffered unless the plaintiff withdraw himself or fail to answer when called, so essentially does the idea of omission or neglect enter into it. 3 Bl. Com., 296, 316, 376. And this description of a nonsuit is confirmed by the mode of entering up the judgment, "Upon which the said A., being solemnly called, doth not come, nor further, prosecute his bill against the said B.; therefore," etc. 2 Lilly, 508. Although the record states that the plaintiff went into court and suffered a nonsuit, yet calling it so cannot make it a nonsuit against the nature and name of the thing. It comes, however, precisely within the description and character of a retraxit as given in the books. If the plaintiff says he will not sue, this is a retraxit; but if he says he will not appeal, this is not a retraxit, but a nonsuit. A retraxit cannot be, (231) unless the plaintiff or defendant be in court in proper person. 2 Danvers, 471; 8 Co., 58. Lord Coke also enters into a particular consideration of the difference between a nonsuit and a retraxit in his commentary upon Littleton, the substance of which is that a nonsuit is error after demand made, when the demandant or plaintiff should appear, and he makes a default. A retraxit is error when the demandant or plaintiff is present in court. Co. Lit., 139a. To the same effect is Mr. Justice Blackstone: A retraxit differs from a nonsuit in that the one is negative and the other positive. The nonsuit is a mere default and neglect of the plaintiff, and, therefore, he is bound to bring his suit again upon payment of cost; but a retraxit is an open and voluntary renunciation of his suit in court, and by this he forever loses his action. If any other proof is necessary of the nature and effect of a retraxit, it will appear in the mode of entering up the judgment: "The said A. B. came into court in his own proper person and confessed that he would not further prosecute his said suit against the said C. D., but from the same altogether withdrew himself." 3 Chitty, 477. It seems impossible from the authorities to consider the act done by the plaintiff in this case in any other light than a voluntary renunciation of his suit, and operating, according to the plain dictates of justice and law, as an impediment to any further prosecution of his action. In the rest of the cases there is a fatal defect appearing on the fact of the warrants in their omitting to state that the offense was committed against the act of Assembly. It is not a formal but a substantial rule that requires a party who sues upon a penal statute to apprise the adversary by some general reference that he is sued for violating the statute. When a person is sued for a penalty on a statute it is necessary to rehearse the special matter and say that the action is brought against the form of the statute; (232) otherwise, if it be not a penal offense at common law, the court will not look to see if it be an offense by statute, and the defendant has no right to suppose that he is sued otherwise than at common law. He may thus be prevented from making a due defense, which, perhaps the law, if he were referred to it, would enable him to make. Saying that he obstructed the road contrary to law gives him no information; he would naturally inquire, What law, statute or common? A long train of decisions has established the principle, and much as we incline to give a liberal construction to proceedings before magistrates, this is an objection that cannot be surmounted. The case is not to be distinguished from Scroter v. Harrington, 8 N.C. 192. One of the warrants concludes properly, and might be supported were it not affected by the other objection. The Court is of opinion that there must be judgment for the defendant in all the cases.
Cited: Wharton v. Comrs., 82 N.C. 15.