CHAPTER XXIII. DISMISSION OF BILL. Dismission of a bill by a plaintiff, 312. Upon what terms, 313. By a defendant before answer, 314. After answer, 316. Proceedings by a plaintiff to prevent a defendant dismissing, 320. Undertaking to speed, 321. Dismission by defendant after replication, 322. Dismission under the old practice, 325. In what cases a defendant is prevented from moving to dismiss, 326. If in contempt or after abatement, 326. Effect of bankruptcy of plaintiff, 327. Of a defendant, 328. Dismission by defendant after order to revive, 329. After bill of revivor where no order to revive served, 323. Dismission after an amendment, 331. How suits were dismissed before order of 1828, 332. Effect of dismissing a bill, 334. BEFORE explaining the manner of bringing a cause to a hearing, it appears desirable to consider the way in which a plaintiff may put an end to a suit, and the consequences to which he exposes himself by delaying to prosecute the same. DISMISSION OF A BILL BY A PLAINTIFF. If a plaintiff files a bill either on his own behalf,[a] or on behalf of himself and all other persons of the same class, he retains the absolute dominion of the suit until the decree, and until that stage of the suit he may dismiss the bill at his pleasure; but after a decree he cannot deprive the other persons of the same class of the benefit of the [a] The complainant may dismiss his bill at pleasure, at any time before there has been a decree, which settles the rights of the parties. Thomas v. Thomas, 3 Litt. 9; Bossard v. Lester, 2 McCord's Ch. Rep. 421. And he may do so, after the master has made a report of the accounts and exceptions filed. Bossard v. Lester, ut supra. And he may do so at any time after the cause has been actually heard, and even after it has been called on for hearing. Curtis v. Loyd, 4 Myl. & Cr. 194; S. C. 2 Lond. Jurist, 1058. So, where a receiver had been appointed, before decree, in a foreclosure cause, and the master reported in what manner he should apply the rents, the court did not thereby acquire such a dominion over the suit, that it could prevent the plaintiff from dis. missing the bill. White v. Westmeath, 1 Beat. 174. But where a decrce, or decretal order, not directing inquiries merely, has been made, the plaintiff cannot dismiss his own bill. Black v. Colnaghi, 9 Sim. 411. The only exception to this rule, is, where the plaintiff is in contempt. Smith v. Smith, 2 Blackf. 232. Though the complainant's mere failure to comply with an interlocutory order of the Court, does not, of itself, so place him in contempt, as to prevent him from dismissing his bill, on payment of costs. Ibid. After a voluntary dismissal of a bill by the plaintiff, he will not be allowed to re-instate it. Orphan Asylum v. McCartee, 1 Hopk. 372. decree, if they think fit to prosecute it.(1)[6] Nor can he, if the suit was instituted on his own behalf, dismiss the [ *313] same after a *decree, even by consent, as after a decree a bill can only be dismissed upon rehearing or appeal.(2) An order obtained by a plaintiff in a cross suit as of course to dismiss his cross bill upon payment of costs, after the original bill and the cross bill had been set down to be heard together, was held to be irregular.(3) The next friend of an infant, or of a married woman has the control of the suit; but the infant on coming of age may dismiss the bill on payment of costs. If there be more than one plaintiff, the general rule requires that they should all join in the application to dismiss, for although in Langdale v. Langdale,(4) Lord Erskine ruled that a bill might be dismissed by one co-plaintiff as to himself with costs without the consent of the other plaintiffs, and even without notice to them, such can only be considered as law when applied to a case where the dismission of the bill would not injure the remaining plaintiffs;(5) or where one of two plaintiffs had ceased to have any interest in the matter in question.(6) If the plaintiff dismisses the bill before the defendants have appeared, it is without payment of costs. If some of the defendants have appeared and others have not, the order is drawn up dismissing the bill, upon payment of costs, to those defendants who have appeared, and without costs, as to those who have not appeared. If all the defendants have appeared, the order is drawn up to dismiss the bill upon payment of costs to the defendants generally, unless they consent to waive such costs. The circumstance of a plaintiff suing in forma pauperis, does not entitle him to dismiss his bill without payment of costs;(7) (1) Handford v. Storie, 2 S. & S. 196. (7) Pearson v. Belsher, 3 Bro. C. C. 87. (4) 13 Ves. 167. (6) See Rowlison v. Halifax, 2 S. & S. 27. [6] Jones v. Lansing, 7 Paige, 583; White v. Westmeath, 1 Beat. 177; Thomas v. Thomas, 3 Litt. 9. And in a very recent case in England, where a complainant filed his bill in behalf of himself and the other unsatisfied creditors of the testator, it was held, that the executors were entitled to dismiss it, before decree, on payment of the plaintiff's principal and interest, with the costs of the suit as between party and party. Pemberton v. Topham, 2 Lond. Jurist, 1009; S. C.1 Beavan, 316. Eng. Chan. Reps. i. 414. b Eng. Chan. Reps. i. 332. neither can an infant plaintiff on his coming of age dismiss the bill, except upon terms of paying the defendant's costs.[a] DISMISSION OF A BILL BY A DEFENDANT BEFORE [ *314 ] ANSWER. Having considered under what circumstances a plaintiff has a right to dismiss his own bill, I proceed to inquire how far a defendant is entitled to dismiss. As a general rule each defendant is entitled to make the application to dismiss independently, and without relation to the state of the proceedings with respect to the plaintiff and any of the other defendants,(1) although since the new orders several exceptions have been made to the rule. The solicitor for some of the defendants was agent for the rest; the former were entitled to move to dismiss, and they moved accordingly, but no order could be made, as the time for the other defendants to answer the amendments had not expired. The motion was refused with costs, as the solicitor must have known that the motion could not succeed.(2) In another case, it was decided that a defendant may move to dismiss, after the expiration of two months from the time when his answer was to be deemed sufficient, although owing to the answers of the other defendants not being filed, the time for amending the bill as to them had not expired, and threatening the defendants who have not answered with an attachment without issuing one, is not using due diligence to get in their answer, so as to prevent another defendant moving to dismiss.(3)[a] (1) Anon. 9 Ves. 512. (3) Gully v. Van Bodicoate, 5 Sim. 668. (2) Partington v. Baillie, 5 Sim. 667. [a] But where an executor or administrator has commenced a suit, by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered, he will be permitted to discontinue without payment of costs. Arnoux v. Steinbrenner, 1 Paige, 82. [a] Where a cause is at issue as to one of the defendants, by filing a replication to his answer, and the plaintiff has neglected to proceed against the other parties, so that such defendant cannot proceed to examine witnesses and close the proofs, he may move to dismiss the complainant's bill for want of prosecution. Vermillyed v. Odell, 4 Paige, 121 ; S. C. 1 Edw. 617. So, in New Jersey, it has been held, that if one of the defendants puts in a plea, and does not set it down, or the solicitor of the defendant who pleads, and the solicitor of the complainant agree to delay the cause for an unreasonable time, this affords no excuse for Eng. Chan. Reps. vii. 573. If a plaintiff does not proceed with his suit within the time limited by the orders and rules of the Court, the remedy of the defendant is a motion to dismiss the plaintiff's bill with costs for want of prosecution. The time when, and the circumstances under which, the defendant is entitled to make this application, depend upon [*315] *the progress the suit has made. As a general rule, the defendant is not at liberty to dismiss a bill, until two months after his answer has been deemed sufficient, neither can he move to dismiss during the pendency of a plea or demurrer,(1) although any length of time may have elapsed since either was filed; for in the one case, if the plaintiff, after the defendant has appeared, does not urge on the suit, the defendant may file his answer, and in the other, may set down his plea or demurrer, and thus put himself in a situation to move to dismiss.[a] Under certain circumstances, however, the defendant is entitled to make the application specially, as in a case where the Court had given the defendant a fortnight's time to answer, after the plaintiff had produced an instrument stated in the bill, and fifteen months having elapsed without production, the plaintiff was ordered to produce the instrument on or before a day named, and production not being made, the bill was dismissed with costs.(2) And in a case where the costs of a former suit had not been paid, and the Court had ordered that the defendant should have a month's further time to answer after the plaintiff should have paid them, and they were not paid in due time, the defendant was allowed to move to dismiss. Also where a bill had been dismissed for want of prosecution, and before the costs were paid the defendant died, (1) Anon. 2 Ves. 287. (2) The Princess of Wales v. Earl of Liverpool, 3 Swanst. 567. the complainant, upon an application, by another defendant who has answered, to dismiss the complainant's bill for want of prosecution. Winans v. Walworth, Halst. N. J. Dig. 171. In North Carolina, where an injunction has been obtained, and dissolved on hearing the answer of the defendant, and the plaintiff retains the bill, if he takes no steps towards preparing his cause for hearing, in two terms after, the bill will be dismissed for want of prosecution. Avery v. Brunce, I Hayw. 369. [a] A motion to dismiss, for want of prosecution, will be refused with costs, when it shall appear that the solicitor of the defendant was, before the notice of motion was given, acquainted with circumstances which left no doubt of the plaintiff having used due dili gence, to obtain sufficient answers from those defendants who had not previously answered. Barber v. Kavanagh, 1 C. P. Coop. 418. and the plaintiff filed another bill against the defendant's executors for the same object; the proceedings in the last suit were, on motion, stayed, until the costs of the former were paid.(1) And where there are several plaintiffs, and the suit abates by the death of one, the defendant may, before answer, move that the bill may be dismissed with costs, *unless the suit is revived by the surviving [ *316 ] plaintiffs within a given time.(2) DISMISSION BY A DEFEndant AFTER ANSWER. If, at the expiration of two months after the defendant's answer(3) has been deemed sufficient,(4) the plaintiff neglects to proceed, the defendant is entitled to move upon notice that the plaintiff's bill may be dismissed with costs for want of prosecution.(5) Thus, supposing a defendant to have filed his answer on the 1st of March, and that it was not excepted to nor referred for impertinence or scandal, nor any proceeding taken by the plaintiff with respect to it, the answer would be deemed sufficient from the 26th of April, or at the expiration of two lunar months after it had been filed; in which case the defendant would be entitled to give a notice of motion to dismiss any day after the 21st of June, that is, after the expiration of the two months after the answer had been deemed sufficient. In ascertaining the period when a defendant may give a notice of motion to dismiss, it must be ever borne in mind that the time which occurs between the last seal after Trinity term, and the first seal before Michaelmas term, or between the last seal after Michaelmas and the first seal before Hilary term, are not to be reckoned in the computation of time which is allowed to a party for amending any bill for filing or delivering, *or referring exceptions to any answer, or [ *317 ] (1) Spires v. Sewell, 5 Sim. 193. (2) Adamson v. Hall, Turn. 258. (3) By the 17th of Lord Bacon's Ordinances, if a plaintiff discontinued by prosecution after all the defendants bad answered, above the space of one whole term, the cause was to be dismissed of course, without any motion; but after replication put in, no cause was to be dismissed without motion and order of the Court. Beam. Ord. 11. (4) As to when an answer is to be deemed sufficient, see p. 286. |