Phœnix v. Hill — 3 Johns. 249

Majority

p. 249

Phœnix, Administrator, against Hill.

Headnote

Where an executor or administrator brings a wrong action, by mistake, the court will allow him to discontinue without costs.

THIS was an action brought on a decree of a court in Scotland. The writ was returned at the November term in 1806, and the defendant was discharged on common bail, the plaintiff not being able to show a sufficient cause of action. A rule was afterwards entered for the plaintiff to declare, and he now applied for leave to discontinue without payment of costs.

There is no evidence that the administrator, knowingly, brought a wrong action, and we are not to presume it. We are, therefore, of opinion that he ought to be allowed to discontinue without the payment of costs.

Rule granted.