Page:Federal Reporter, 1st Series, Volume 4.djvu/114

 :^0P FEDEEAl REPORTEE. �form of thë proceeding or want of jurisdiction, he may ba entitled to such a decree. Hughes v. U. S. 4 Wall. 232; Kendig v. Dean, 97 U. S. 423; Clay v. Rufford, 19 Eng, L. & Eq. 350. We need not go into an examination of tliia class of cases, and it is sufficient to state that generally, where the plaintief is without fault and justice would require it, he will be allowed to amend or bring a new sait. It may be that in that class of cases where, if a hearing were iiad, the court would feel authorized to exercise its discretion and order a dismissal without prejudice, the plaintiff might, on discovering the def ect, voluntarily dismiss ; and, to save ail possible ques- tion of his right to bring another suit, the court would possi- bly aliowiiim to dismiss without prejudice. Lester t. Leather, 1 De G. & J. 360-361. In the case now under consideration no suggestion is made of any circumstance like those men- tioned to invoke the discretion of the court in favor of such a decrëe. Motion denied. ���September 20, 1880. The foregoing decision having been announced, the plaintiffa moved to dismiss, in the common form, upon the payment of costa. The defendants insist that this cannot now be done without prejudicing their rights in a way that will make it inequitable to grant this motion. ïhese are bills filed by certain holders of bonds of the state of Tennes- see to enforce against the railroads named as defendants a lien whieh the bills claim exists in their favor on the railroad prop- erty now in the hands of the present owners of the roads. Other defendants are persons called in the argument "substitution" bond holders, who own bonds of the railroad companies issued since the bonds of the state that the plaintifïs hold. It appears by the records, and by affidavits filed on the hear- ing of this motion, that these suits are three of some twenty Buits in ail filed in this district, and the other federal judicial districts of Tennessee, against ail the railroads in the state affected by the alleged lien. The cases have ail been pre- pared for trial in a very elaborate manner, and, being set for hearing, have been ail tried, by agreement, except these ����