Definition
Withdrawing record is a procedural device in common law practice by which a plaintiff physically retrieves the nisi prius record — the formal record of the case filed and delivered to the trial court — just before trial commences, for the purpose of preventing the case from being tried at that sitting. By removing the record, the plaintiff effectively halts proceedings without a formal motion, postponing the cause to a future term.
The act carries a practical consequence equivalent to a motion to postpone: the cause is not tried, no verdict is rendered, and the parties are returned to their pre-trial posture for that term. Timing governs its permissibility. The withdrawal may be made as of right before the jury is sworn. Once the jury has been sworn, it may only be done with the consent of the defendant's counsel.
Common Confusion
Withdrawing record should not be confused with a voluntary nonsuit or discontinuance, which are formal dispositions affecting the cause of action itself. Withdrawing the record postpones trial; it does not abandon the suit. The cause remains alive and may be relisted for a subsequent term. A nonsuit, by contrast, terminates the plaintiff's action (subject to the rules of that jurisdiction on recommencement). Researchers working in older English and American common law sources should be careful not to treat these as interchangeable, since their procedural effects diverge materially.
Why It Matters in Research
This term is almost exclusively a creature of pre-twentieth century English and American common law procedure, tied directly to the nisi prius system of circuit jury trial. It has no meaningful modern American counterpart as a formal procedural device, because contemporary civil procedure — governed by rules-based systems such as the Federal Rules of Civil Procedure — replaced the physical record-filing framework that made withdrawing record possible and necessary.
Researchers will encounter this term primarily in:
— English common law practice manuals from the late eighteenth and early nineteenth centuries, particularly Tidd's Practice, Archbold's Practice of the King's Bench, and Chitty's General Practice, all of which are cited uniformly across the source dictionaries.
— American state court records and opinions from the colonial period through roughly the mid-nineteenth century, when nisi prius procedure was still operative.
— Historical treatises on common law pleading and practice, where the device appears alongside related postponement mechanisms.
The key research trap is anachronism: a modern researcher encountering "withdrawing record" in a nineteenth-century American case may instinctively reach for analogies to modern motions to continue or to dismiss without prejudice. Neither is accurate. The withdrawal was a self-executing physical act, not a motion requiring court approval, which gave the plaintiff unilateral control over trial scheduling that modern procedure does not replicate.
The nisi prius record itself — the paper document delivered to the trial judge — is the artifact on which this entire device depends. Researchers unfamiliar with the mechanics of nisi prius practice should understand that record in its historical sense before working with this term.
Historical Dictionary Support
The four source dictionaries are in close agreement, with minor variation in emphasis. Black's (both editions) and Burrill track nearly identical language, drawing on the same English practice authorities — Tidd, Archbold, and Chitty — as primary support. Bouvier's formulation is slightly more concise and adds the characterization that withdrawal before the jury is sworn "has the same effect as a motion to postpone," which is the clearest plain-English gloss offered by any of the sources and is genuinely instructive.
None of the sources address what happens to the plaintiff's ability to bring the cause forward after a withdrawal, or whether repeated withdrawals carried any penalty or limitation. Tidd's Practice and the other underlying English authorities would need to be consulted for those procedural details. The silence across all four dictionaries on this point is notable and signals that researchers should not assume the dictionaries are complete guides to the doctrine's practical operation.
Burrill's entry contains what appears to be a truncated sentence fragment at the close ("or otherwise withheld, so that they cannot be rep—"), suggesting the surviving text of that edition is incomplete at this entry. Researchers relying on Burrill for this term should treat its entry as potentially cut off and verify against the original.
Jurisdictional Note
Withdrawing record was a device of English common law procedure transplanted into American practice during the colonial and early national periods. Its availability and mechanics varied as individual American states reformed their procedural codes, and it was effectively superseded in most jurisdictions with the adoption of code pleading in the mid-to-late nineteenth century and again with rules-based civil procedure in the twentieth century. It has no operative significance in modern American federal practice.
Encyclopedia Cross-Reference
No Law Mind Encyclopedia entry directly addresses nisi prius practice or the historical mechanics of trial record withdrawal. The entries identified — covering tax penalty withdrawals, guilty plea withdrawal, and real estate recording priority — address distinct uses of "withdrawal" and "record" and are not relevant to this term.