108
FEDERAL REPORTER.
the practice was at that time than any American judge at this distance from the time fixed for our guidance by the equity rules. Equity Rule 90. The same lord chancellor, whose ruling in Curtis v. Lloyd is so much relied on, said, in Cooper v. Lewis, 2 Phil. 177, 181; S. C. 22 Eng. Ch. 181, that "the plaintiff is alloweu to dismiss his bill on the assumption that it leaves the defenuant in the same position in which he would have stood if the suit had not been instituted; but that is not so where there has been a proceeding in the cause which has given the de. fendant a right against the In that case it was an order on a demurrer, from which the defendant could appeaL Here it is the plea. of an estoppel, on which the defendants may have ,3. decree against the plaintiffs personally, in the sense that they need to act upon them by injunction at the hearing; and if now. they are allowed to leave the court they may not only rid themselves of the defence by transfer of the bonds, but drive the defendants to other states for redress. By general order No. 117 of 18;1:5, 29 Eng. Ch.B. Prefix 66, the practice was regulated definitely by a rule which is can· sonant with every sense of justice, and the plaintiff IS not allowed to dismiss, or make default, after the cause is set to a dismissal down for hearing, without its being on. the merits. This rule is not binding on us, but it has been adopted in many states, either by rule or statute. Badger v.Badger,supra; Howard v. Bugbee, 25 Ala. 548; l{ean v. Lftthrop, 58 Ga. 355. The existence of this rule, so soon after Booth v. Leyecster and. Curtis v. Lloyd, accounts for the fact that there are no later cases on the subject cited by the text writers. I have consulted all the works of practice, old and new, and all the cases I could find accessible to me, and the general rosuE is that while they say with one accord that it is a mv,tter of <lourse to allow the plaintiff to dismiss at any timehefore tDe hearing upon payment of the costs, none of them deny qualification to the rule; and the cases generally cited anterial' to those already mentioned, namely, Anonymous, 1 Ves. Jr. 140; Dixon v. Parks, Id. 401, 402; Conntess oj I'lymouth '{.
STEVENS V. THE RAILROADS.
109
Bladen, 2 Vern. '31, 32; .and 'Gilbert v. Hawles, 1 Chi Co,. 4;0, do not any of them falLwithin the exceptions mentioned by Lord Langdale. In 1 Harrison, Ch. Pro (Farrand'BEd. A. D. 1807;,) 409, the rule is stated thus: "Before appearance, t4e:plaintiff may obtain leave, to dismiss his own bill, so a;fter appearance and before answer, or after answer and before the parties have examined witnesses, the plaintiff may generally of course, on motion, have loave to dismiss his own bill, with -costs. " The case of V. Lester, 2 McCord Ch. 419, cited by plaintiffs, was overruled in Bethia V. McKay, Clwves' Eq. 93; and, in Bank V. Rose, 1 Rich. Eq. 292, one of the ablest of our equity Gourts, by the mouth of a most eminent chancellor, after an elaborate'examination of the subject, takes the same view Latd Langdale did, and reaches the same conclusion r have' here expressed. It is said in Butler v. Bulkeley,2 Swanst. 396, (373) that "there is no rule of practice in this -court which yield to special circumstances." Numet· QUS other cases have been cited from the state but r deem unnecessary to further notice them. them deny the qualifiliation, or limit it to rights acquired under a decree. . Other objections are taken, 'such as that the: defendants having answered under oath are entitled to the benefit of:the answer as evidence; that by a dismissal the plaintiffs can defeat this right, and in a new bill oath,under the . amendment of the forty-first rule promulgated December, .1871; that there a,re rights to be adjudicated as between the defendants themselves; and that these plaintiffs shall not be allowed, by what the defendants' counsel call "arbitrary and whimsical conduct," to deny them a voice in the determination of this important litigation by dismissing the bills against these defendants while prosecuting all the others in the series against the other railroads. r am inclined to think that none of these objections are tenable to qualify the right to dismiss in the present state of the pr,1ctice, but it is not necessary to decide these points in the view r take of the first objeJtion considered. The injury
of·
110 to the defendant must be of a character that deprives him of some substantive rights concerning his defences not available in a second suit, or that may be endangered by the dismissal, and not the mere ordinary inconveniences of double litigation, which, in the eye of the law, would be compensated by costs. Nor is it necessary to consider the suggestion that the stipulation of counsel, and the order upon it, amounts to an agreement to try or continue and not dismiss. I am satisfied that the right to dismiss is not absolute, and that this case is within the qualification mentioned. Motion denied. NOTE.-Consult, on the right of the plaintiff to dismiss, Ordinances of Lord Bacon, Nos. 13,14,16,17; Barton's Suit in Equity, (A.ppendix;) Mood. Ch. Pro 297; 1 New!. Vh. 177; 1 Smith's Ch. Pro (2<1Ed.)312, (Ed. 1842i) Beame's Eq. Costs, 85,229, (20 Law Lib.i) 1 Danl. Ch. Pro (5th Jj'd.) .790, and compare previous editions; 1 Hoff. Vh. Pro 327, and notes; Handford v. Storie, 2 l::lim. &; Stu. 196; S. C. 1 Eng. Ch. 196; Brandlyn v. Ord, 1 Atk. 571; Ruberry V. Morris, 16 Bim. 313; S. C. 39 Eng. Ch. 313 j v.Westmeath, 2 Moll. 128; S. C. 1 Beat. 17; S. C. 12 Condo Eng. Ch. 478; Gen. Ord. No. 117, 29 Eng. Vh. (Prefix 66:) 2 De G. Macn It Gordo 852, note; He Orrell Co. L. R. 12 Ch. Div. 681; Bierdemann V. Seymour, 1 Beav. 594 j S. C. 17 Eng. Vb. 594, note j 29 Eng. Ch. 350; Craft v. JohnIOn, Tenn. Sup. Ct. Knoxville, 1875; Ellis v. Smith, ld.; 1 King's Dig. (2<1 Ed.) 945,2; Foote v. Gibbs, 1 Gray, 412; Bigelow V. Winsor Id. 299,301; Borrow8cale V. Tuttle, 5 Allen 377; Snell V. Dwight, 121 Mass 348; Perrine v. Swaim, 2 J. C. 475; Burras V. Looker, 4 Paige, 227; Cummins V. Bennet, 8 Paige, 79; Simpson V. Brewstert 9 Paige, 245; Sea Ins. Co. v. Day, Id. 247: Saxton v. Sto1JJell,l1 Paige, 526; Railroad CO. V. Ward, 18 Barb. 595; Wilder V. Boynton, 63 Barb. 547, 550 j Ogsbury V. La Farge, 2 N. Y. 113 j Smith v. Adams, 24 Wend. 585; Conner V. Drake, 1 Ohio St. 166 j F'rencll V. French, 8 Ohio, 214; Louderbach v. ColUns, 4 Ohio St. 251; Smith v. Smith, 2 Blackf. (2d Ed.) 232; Spriggs v. Wilson, 2Dev. Eq. 385; &'ylesv. Tibbetts, 5 R. 1. 79,91; Porter V. Vaughn, 26 Vt. 624, 626; Grubbs v. CZayton, 2 Hayw. 575: Palmer V. Rankins, 30 Ark. 771; Cook V. Walker, 24 Ga. 331; Camdrn, etc., v. Ste'IJJart, 4 Green, Ch. 69; U. S. v. Keen, 1 :M:cf_ean, 429, at p. 447; Welch V. Mandeville, 1 Wheat. 233 j Goodyear V. Bi8ltop, 4 Blatchf. 4 8.
r
llODGDON V. BURLEIGH.
111
HODGDON
v.
BURLEIGH
and others.
(Circuit Oowt, D. Maine.
September, 1880.)