Lewis v. Germond — 1 Paige Ch. 300

Majority

p. 300

*Lewis v. Germond and another.

Dec. 19th.

Headnote

In no case can a complainant, unless he prosecutes as executor or administrator, dismiss his bill without the payment of costs, not even if it should appear he would be entitled to a decree if he proceeded in the suit.^[1]

*This was a motion on behalf of the complainant for leave to discontinue this suit without costs, upon the ground that he had probable cause for commencing it, and that he had, since that time, sold the property which was the whole subject matter of the controversy in this suit.

The Chancellor:—By the English practice, it is necessary in every case to bring the cause to a hearing, if the complainant wishes to get rid of costs ; although from the facts of the case, it clearly appears that if he had gone on, he would have been entitled to a decree. Dickson v. Parks 1 Ves. jun. 402; Anonymous, id. 140; Fidele v. Evans, 1 Cox’s Ca. 27. The 16th section of the act concerning costs, (1 R. L. 348,) provides, that upon the plaintiff’s dismissing his own bill in equity, or the defendants dismissing the same for want of prosecution, the plaintiff shall pay to the defendant full costs to be taxed. In the case of Arnoux v. Steinbrenner, (ante, 82,) this court decided, in analogy to the practice of the Supreme Court, that in the case of an executor who would not be liable in any event, and where the object of the suit was put an end to by circumstances not within his control, he might have his bill dismissed without the necessity of setting it down for a hearing.

p. 301

In this case, it is certainly not clear that the complainant would be entitled to a decree at the hearing; but, on the contrary, the dissolution of the injunction shows that the late Chancellor was against him on the bill and answer. Without reference to the merits of the controversy, I am satisfied that the voluntary sale of the subject matter of the litigation, by the complainant, does not alter his rights in this respect, and that he is not entitled to dismiss his bill without costs.

The bill must be dismissed, with costs, unless he elects within twenty days to proceed to a hearing.