Page:Federal Reporter, 1st Series, Volume 4.djvu/115

 ÛTEVBNS ». THE EAILROADS. 101 �three before the court at Nashville, and are now àwailing judgment. Counsel disagreed as to these three, and they were called for trial regularly at the'beginning of this term, and passed, for the mutual accommodation of counsel, to enable them to reach some basis of agreement for their trial. �The defendants continuing to urge a hearing, the cases were, by stipulation between the counsel in writing, set for trial on the sixth of September, unless the plaintiffs should show cause for continuance. On that day they moved to dismiss without prejudice, whicb motion being denied, they nowmove to dismiss generally. No reason is given for taking thia course growing out of any defect in the proceedings or want of preparation for trial, but the motion is urged simply upon the ground of an absolute right to dismiss at pleasure, at any time before the cases are actually heard. The defendants, among other defences, plead an equitable estoppel arising out of the conduct of the plaintiffs. The allegations on this sub- ject briefly are, that the railroad companies, by authority of law, had satisfied the lien now sought to be enforced by the plaintiffs in a settlement they had made with the state before these bills were filed; that in the process of this settlement, and relying on its validity as a release of the lien, they have issued bonds in large amounts, secured by liens on the roads. These are called "substitution" bonds. Both the companies and these "substitution" bond holders allege that the plain- tiffs had acquiesced and so condueted themselves in the mat- ter of the settlement with the state, and the issuance of the "substitution" bonds, that they bave precluded themselves from claiming any lien for the bonds they hold, however much other persons may be entitled to such a lien. �Letters of the plaintiffs are exhibited, with the answers and proof taken, intended to establish this estoppel on the one hand and to defeat it on the other. The defendants now say, if the plaintiffs voluntarily dismiss these bills they can transfer their bonds to other persons, not affected by this alleged conduct of the plaintiffs, and this defence may be thereby effectually defeated To this several replies are made : First, that the right to dismiss is absolute and un- ����