AMERICAN ZYLONITE CO. V. CELLULOID MANUF'G CO.
to apply for and obtain authority to' borrow $500,000 on receiver's certificates to complete the road, and further authority to purchase the claim ofintervenors. After thus baffling and delaying them, it may inequitable to hold that the road, as a whole, should bear the burdens and losses of delay. But it is unnecessary now to determine absolutely the rights of the parties. It is enough to hold that the sale of the propertyasa whole should not stand, with this receiver's obligation ona part unsatisfied. The order will· therefore be that the order of confirmation and the sale be set aside, and the receiver directed to take possession' of the property, unless within 90 days the claim ofthe intervenors be paid. If it be paid, the order of confirmation will be final. .
AMERICAN ZYLONITE Co. V. CELLULOID MANUF'G Co.
(Oircuit Oourt, B. D. Ne1JJ York.
PRACTICE IN CrVIL CASES-DISMISSAL OF CASE.....:.EQUITY.
Prior to the term, the complainant, without application to the court, entered a rule in the common rule b..ook discontinuing the cause on payment of costs. Held, that the complainant in an equity action cannot in this manner discontinue a suit. An order of the court is necessary. In an action for the infringement of a patent, the complainant askedtp discontinue on payment of costs. Defendant objected, for the reason tha\ the testimo;ny relied upon to show prior invention was of such a character that defend'aDtIliight not be able to procure it again. Held that, as a condition of the discontinuance, it should be stipulated that defendant's record may be . used in any, new suit brought against it by complainant.
SAM;E).,-PATENTS FOR lNVENTIONS.,..-lNFRINGEMENT SUIT.
In JQquity. Prior to the term, the complainant, without application to the court, entered a rule in the common rule book discontinuing the cause on payment of costs. The defendant, having printed its proofs, placed the cause upon the calendar, and, when it was reached on the regular call, insisted that it should be argued or dismissed upon the merits; that the complainant could not, without the consent of the defendant or the court, discontinue an action in equity; and that it was discretionary with the court to grant or refuse such permission. The court adopted the view that the cause was not discontinued, and set it down for a day certain, to be then disposed of. The complainant now moves for leave to discontinue, on payment of costs. E. M. Felt and H. M. Ruggles, for complainant. Frederic H. Betts, for defendant.
COXE, J. The ex parte entry in the rule-book was a nullity. plainant in an equity action cannot in this manner discontinue An order of the'couri is necessary. Conner v. Drake, 1 Ohio 'The right,however, of a complainant to dismiss a bill before
A comthe suit. St. 170. hearing,
I;\ction to recover the' of real p!operty. the (iefense of ownthe defendant or another lnqst be speclally pleaded. '2.' p,o'W:ka:"::'WHO: ENTITLEn .:. . . ! A woman w)ip is not'a'resi4eilt',onlie state is l).oteutitle!i to dow.erin any ,, ofwhich her did not die seized. : ". .
, .. In.
In estimating the value of a widow's dower in land aliened by the husband in his life-time, she ought to have the benefit of the increase in value between the date of such alienation and the death of the husband, not arising from or .
by the Oourt.)
,4Qti9nto J:teco'ver Possession of Real PropElrty.' ;J,ohn, W. Whplley and Jamea K. Kelly, forplaintifl'· .,SfY/2cca: Sm¥Jt,' for defendants.
J.,''l'his action is brought by the plaintiff;Q citizen of ArJan;sas,agawst the defendants, <li!izeJi).E! of Ore.gon" to recover dower ina ·tfll,ct'of lapdi.q.cluded in the William Blackis'tone donation, lying on the west bank of the Wallamet river, just north ofPortla.nd, and valued at $50,000. " It is alleged in the complaint that on December 24, 1865, and prior thereto, Thomas Thornburn was seized of an estate of inheritance in the that at anddul'ing such time the plaintiff was the lawful lived with hirnuntil his death, at Prescott, · (j)ctol:;u:lr 20, 1886; that the plaintiff's right to dower in said :p.qtpeEll1 aliened, and that .she.isentitIed to vided