Definition
Latin: "I withdraw." A formal declaration by a plaintiff in old common law practice signaling voluntary abandonment of a pending action. The term functioned as a procedural act by which a party withdrew from prosecution of a writ or suit, and it is closely associated with the entry of a retraxit — the formal record of such withdrawal.
Retraho was the spoken or pleaded expression; the legal consequence that followed was the retraxit, the enrolled record of the withdrawal. The distinction matters: retraho describes the act of declaring withdrawal, while retraxit describes the recorded legal event with its attendant consequences.
Common Confusion
RETRAHO vs. RETRAXIT: These terms are frequently run together in historical sources. Retraho is the verb — the act of declaring "I withdraw." Retraxit is the noun form and the procedural record that resulted from that declaration. A retraxit carried significant consequences, including a bar to future action on the same cause. Retraho alone, as a spoken declaration, was the trigger; the consequences attached to the enrolled retraxit. Researchers working in early common law sources must track both terms to understand the full procedural sequence.
RETRAHO vs. NOLLE PROSEQUI: Both involve a plaintiff stepping back from prosecution, but they are not equivalent. A nolle prosequi was generally without prejudice to future action; a retraxit (the consequence of retraho) operated as a final bar. The two procedures served different strategic purposes, and conflating them in historical research produces serious analytical error.
Core Elements
The Burrill excerpt points to several elements that defined a valid retraho in old practice:
1. Who could withdraw: Any plaintiff, regardless of status ("quicunque").
2. Form of words: No precise formula was required. The sources confirm that multiple phrasings were recognized — "I withdraw myself from that writ," "I retire," "I will not further prosecute," or equivalent expressions.
3. Consequence of withdrawal: The phrase "impune non recedit" — he does not withdraw with impunity — signals that withdrawal was not cost-free. The withdrawing party faced consequences, typically in costs or in the bar on future suit.
4. Effect: The withdrawal, once entered, ripened into a retraxit on the record, which historically barred the plaintiff from bringing the same cause of action again.
Why It Matters in Research
Retraho appears almost exclusively in sources treating medieval and early modern English common law procedure. Researchers working in Year Books, early plea rolls, or treatises on common law practice will encounter the term as part of the procedural vocabulary governing the discontinuance and withdrawal of writs.
The critical research trap is treating retraho as a synonym for modern voluntary dismissal without prejudice. It is not. The doctrine embedded in retraxit — that withdrawal operated as a final bar — makes retraho the procedural precursor to a consequence far more severe than a modern nonsuit or voluntary dismissal. Any research argument that maps retraho onto modern procedural equivalents must account for this distinction.
The Burrill excerpt, though truncated, is valuable precisely because it preserves the indifference to form: courts did not demand a magic-words formula. What mattered was that the plaintiff unmistakably signaled withdrawal. This flexibility in expression, combined with the severity of the consequence, is the tension at the heart of the doctrine.
Researchers tracing the history of res judicata and claim preclusion will find retraxit (and by extension retraho) to be a significant ancestor concept. The idea that a plaintiff who voluntarily withdraws is bound — cannot re-litigate — feeds directly into modern preclusion doctrine.
Historical Dictionary Support
Burrill's is the primary source available in the Law Mind corpus for this term. The entry is notable for its direct quotation from what appears to be a treatise or procedural authority in law Latin, confirming that the rule against costless withdrawal was settled enough to be stated categorically. The phrase "impune non recedit" — he does not go free — was not merely descriptive but normative: withdrawal triggered a legal consequence.
What the historical dictionaries do not fully develop is the relationship between retraho and the enrolled retraxit. Burrill gestures at the connection but does not spell out the full procedural chain. Researchers should treat Burrill's entry as an entry point, not a complete treatment, and pursue primary sources on retraxit for the full doctrine.
Jurisdictional Note
Retraho is a term of English common law procedure with no direct counterpart in civil law systems. American courts inherited the underlying concepts through the common law tradition, but the term itself drops out of American legal usage by the early nineteenth century, supplanted by procedural vocabulary governing nonsuit and voluntary dismissal.
Encyclopedia Cross-Reference
Law Mind Encyclopedia — Nonsuit
Law Mind Encyclopedia — Retraxit
Law Mind Encyclopedia — Res Judicata and Claim Preclusion