59 Mass. 42 - Whitten v. Whitten — 59 Mass. 42

William Whitten & others vs. Mary Whitten. Where an opinion is given in a suit in equity, involving the merits of the canse, but not decisive of the plaintiff’s right to proceed further, the court will not give the plaintiff leave to discontinue without costs; although the suit was commenced in the honest belief of facts, the truth of which could not be otherwise ascertained. In this case, which was before the court at the last term, (3 Cush. 191,) the court having then decided, that upon the facts stated in the bill, and others admitted by the parties, there was no trust, express or implied, disclosed in the bill, which could give the court jurisdiction of the cause, but that the plaintiffs might proceed nevertheless to establish a trust by other evidence, the plaintiffs now moved for leave to discontinue the suit without costs. G. T. Curtis, for the plaintiffs. 31. S. Clarke, for the defendant. — By the Court. (majority) By the Court. An opinion was delivered in this case, at the last term of the court, upon certain points going deeply into the merits of the case, but not entirely decisive of the plaintiffs’ right to continue the litigation further. The plaintiffs now ask the court to decide, in case they should discontinue their suit, that they may be permitted to do so without costs. This is rather an unusual mode of presenting a question of costs, for the consideration of the court. Such a motion is usually made after a discontinuance of the suit, and being a question of judicial discretion, its decision must depend on the peculiar circumstances of each case. We see no reason to doubt the statement, that this suit was commenced in good faith, and in the honest belief of facts, which perhaps it was impossible fully to ascertain without commencing the suit. But we believe this is true of a great many suits, in which, notwithstanding, the law gives costs to the prevailing party. In the form in which the motion now stands, for leave to discontinue the suit without costs, we think it cannot be allowed.