Page:Federal Reporter, 1st Series, Volume 4.djvu/111

 BTETENS W. THSEAILK0AD9. 97 ���C. A. Stevens and others ». The Eailboads. {Circuit Court, W. D. Tennessee. Beptember 18, 1880.) �1. Chancebt Peactice — DisMissAii BY THE Plaintifp -without Prej- �udice. — ^The plaintifl will not be allowed to voluntaiily dismiss his bill "without prejudice to the bringing of anotUer suit," unleas the circumstances are such that the court would, upon final bearing, per- mit the bill to be so dismissed. �2. Bame — Same— ExcEmoNS to the Genekal Rulb.— The righl of a �plaintiH to dismiss his bill upon payment of the costs, at any time before a hearing on the merits, is not an absnlute and unqualifled right. It will not be allowed when, by so doing, the plaintifl will prejudice the defendant ; but this injury must be of a character dif- ferent from the mere ordinary inconveniences of double litigation, which, in the view of the law, are compensated by costs, and must deprive the defendant of some aubstantive right not available in a second suit, or that may be endaugered by the dismissal. �3. Bame— Same — Oasb in Judgment. — This exception is not conflned to �rights acquired by some order or decree entered in the case. It may arise out of any proceeding in it, and may be based on the nature of the defence, the condition of the pleadings, the agreement of the parties, or any circumstance appearing in the record which showa that it would be inequitable to allow the dismissal. Thus, where the defendant pleaded anestoppel, which,if established, would amountto a defeasance of a lien claimed by the plaintifl on his property, and which it was the object of the bill to enforce, and it appearing that this defence could be endangered by a transfer of the lien af ter dis- missal, the plaiatifls were not allowed to disraiss. �4. Keootiablk Bokds — Lis Pendbns. — The exception in favor of nego- �tiable paper to the ordinary rule of Us pendens, haa no application to a suit oommenced to enforce a collateral lien created by third peraons upon property not belonging to the debtor, and now in the hands of Etrangers to the obligation of the bonds. The controversiea about the lien are independent of and collateral to those controversiea about the negotiable securities which are includcd in the exception. �In Equity. �L. e E. Lehman, for plaintifs. �Wright, Folkea & Wright, James Fentress, and E. C. Wae- thall, for defendants. �Hammond, D. J. These causes were called for trial at the regular call of the docket, and set for hearing, by consent o* parties, for September 6, 1880. On that day the plaintiffs moved to dismiss their suits upon payment of the costs, "with- �v.4,no.2— 7 ����