Howard v. Bugbee , 25 Ala. 548 ( 1854 )

GOLDTHWAITE, J.

The only question in this case is, as to the right of a sole plaintiff in chancery to dismiss his bill at his own costs, and without prejudice, after answer filed, and before any order or decree is made in the cause.—In Carrington v. Holley, (1 Dick. 280,) after a feigned issue had been directed, it was held by Lord Hardwicke, that the plaintiff might dismiss his bill before trial on the payment of the costs ; and in Dixon v. Parks, 1 Ves. 402, Lord Thurlow said, that to dismiss a bill without costs was a motion of course. In Booth v. Leycester, 1 Keen 247, however, Lord Langdale, the Master of the Rolls, where the plaintiff in a .cross suit obtained an order as of course to dismiss his bill, lifter the original and cross bill had been set down to be heard together, said, “ that he had a strong impression, at first, that a plaintiff might dismiss his own cause upon payment of the costs at any time, but on inquiring into the practice he found the rule to be otherwise ; and it was certainly quite reasonable that a plaintiff ought not to hare the power of dismissing his bill, when by so doing he might prejudice the defendant and the order -of dismissal was held to be irregular. It is to be remarked, that no authority is cited by the Master of the Bolls in support of his opinion; and in the case of Curtis v. Lloyd, decided two years afterwards, the case of Booth v. Leycester was repudiated by Lord Chancellor Cottingham, who decided, in effect, that a plaintiff might obtain an order dismissing his bill with costs, at any time before the cause had actually been heard, and even after it had been called on for hearing. No decree had, however, been rendered in that case ; so that it does not go further, than to decide that a bill may be dismissed at any time before a decree is madp. See, also, Locke v. Nash, 2 Mad. Ch. Pr. 389, n. y ; White v. Lord Westweath, 1 Beat. 174. The best writers on Chancery Practice lay down the same rule (2 Dan. Ch. Pr. 929 ; 2 Mad. Ch. Pr. 389); and the ground on which it is rested by Lord Cottingham in Curtis v. Lloyd, supra, that the plaintiff should be in .no worse situation than if he had made default, in which case -the only decree that could have been rendered, would have been for want of prosecution, dismissing his bill with costs, seems to be conclusive; The rule, as we have stated, has been, generally followed by the American cases (Cummings v. Bennett, 8 Paige 79 ; Bossard v. Lester, 2 McCord’s Ch. 419 ; Smith v. Smith, 2 Black 232) ; and, although it may occasionally be productive of some hardship, must bo regarded as the law, until it is changed by authority, as it has been in England by the 117th Order of May, 1845, which provides, “ that if the plaintiff, after the cause is set down to be heard, causes the bill to be dismissed on his own application; or, if the cause is called on to be heard in court, and the plaintiff makes default, and by reason thereof the. bill is dismissed, then, and in such case, such dismissal, unless the court otherwise orders, is equivalent to a dismissal on the merits, and may be pleaded in bar to another suit for the same matter.” This rule, however, is not in force with us, as it has been adopted since our fifty-first rule of Chancery Practice.

Note by Reporter. — The 28th Rule for the regulation of Chancery Practice, adopted at this term, to take effect from and after the first day of November, 1854, is a literal copy of the English Rule (117th Order of May, 1845,) above referred to. This decision, therefore, must be confined to orders of dismissal made previously to the first day of November, 1854.

Judgment affirmed.