Olcott v. G. Banfill & E. Carlton

7 N.H. 469

Opinion

Richardson, C. J.,

delivered the opinion of the court:

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We shall in the first place examine the question, whether the plea is in law a good answer to the action. For if it be not, it will be unnecessary to consider the merits of the replication.

A. covenant not to sue is in many cases construed to amount to a release. And an agreement not to sue, although not by deed, may perhaps, if founded on a good consideration, amount to a release. 2 Saunders 48, a; 8 Johnson 54, Phelps vs. Johnson; 8 D. & E. 168, Dean vs. Newhall; 19 Johnson 129, Chandler vs. Herrick; 4 Greenleaf 421, Walker vs. M’Cullock; 8 Mass. R. 480, Ruggles vs. Patten; 7 Cowen 48, Dearborn vs. Cross; 1 H. Bl. 21, Camden vs. Edie; 1 D. & E. 388, Exec'rs of Wright vs. Nutt; 2 John. 186, Cuyler vs. Cuyler; 7 ditto 207, Rowley vs. Stoddard; 2 ditto 448, Harrison vs. Close; 5 East 230, Fitch vs. Sutton.

In this case, the agreement is stated as a mutual agreement. The promise on the one side is a good consideration, for the promise on the other side.

An agreement not to prosecute a writ of review at all may perhaps be considered as a release of the right of review. 6 N. H. R. 205. But an agreement to dismiss a writ of review is not in itself a release of the right of review. An agreement to become nonsuit has never been considered as a bar to another action.

An agreement to dismiss an action is not equivalent to a retraxit. A retraxit is a voluntary acknowledgement, upon record, by a plaintiff present in court, that he has no cause of action. It cannot be by attorney. 8 Coke 115, Bucher’s case; Cro. James 211; 1 Pick. 371; 3 Bl. Com. 296; Co. Litt. 139, a.

An agreement to dismiss an action is not in itself an admission that a plaintiff has no cause of action. And an agreement to dismiss a writ of review is not an acknowledgement that there is no legal ground for reversing the first judgment.

Nor can an agreement to dismiss a writ of review be construed as an agreement not to prosecute another writ. If in this case the actual agreement was that no writ of review should be further prosecuted, it should have been so pleaded. Thus pleaded, it might perhaps have been a good bar. But it is not so pleaded.

An agreement to dismiss an action can in no case be of any avail to defeat the suit, unless it is put upon the record, so that it can be specifically enforced. It can never be pleaded as a bar.

The plea in this case is then defective in substance, and the matter it contains is in itself no bar to the further prosecution of this action.

Parker, J., having been of counsel did not sit.