Majority
p. 419De Luze and another v. Loder and others. August 25, 1840.
Headnote
Practoce. Dismissing bill.Although a solicitor appears for more than one defendant and only one puts in an answer, such one may move to dismiss for want of prosecution; and it is not enough to say that such solicitor should have got in all the answers.
Motion, on behalf of the defendant Benjamin Loder, to dismiss the bill for want of prosecution.
Subpoena served on Benjamin Loder on the twenty-first day of October, in the year one thousand eight hundred and thirty-seven ; appearance soon thereafter; answer served on the seventh of December following; in January, one thousand eight hundred and thirty-eight, the complainant obtained an order to amend; served amended bill; and Loder answered it on the eighth day of January, one thousand eight hundred and thirty-eight. No replication had been filed.
There were two other defendants, who also appeared by the solicitor who acted for Loder ; but no answer had been put in for them, nor had the complainants moved against them.
Mr. James Lynch, for the motion.
Mr. W. H. Harison, for the complainants.
The counsel for the complainants insists that, as the solicitor of Loder appeared for all the defendants, he should cause all their answers to be put in and not move to dismiss ; for it may be his own fault that his other clients have not answered. I think, however, this cannot ex
p. 420
cuse the remissness of the complainants. One defendant, who answers separately, may move to expedite the suit notwithstanding his solicitor is retained by other defendants.
Order, that the bill be dismissed as to the defendant Loder for want of prosecution, with costs to be taxed ; and that the complainants have leave to dismiss their bill as to the defendants Lynch and Clinton, without costs and without prejudice to a new bill against all or any of the defendants.