Page:Federal Reporter, 1st Series, Volume 4.djvu/120

 106 fedekaIj repobtee, �his bill, and which the iearried master of the roUs would not permit him to take. �I am thus particular in analyzing tliïa cause, because I think the learned counsel for the plaintiff here, and souie of the digests are mistaken when they say that it only decides that a defendant will not be allowed to dismiss his cross-bill to the injury of the plaintiff in the original suit. The case was afterwards affirmed "in ail ita parts" by Lord Chancel- lor Cottenham, 3 Mylne & Craig, 459, 471 ; S. C. 14 Eng. Ch. E. 459. This question of practice was not mentioned or referred to on appeal, so far as the report shows, but if the ruling of the master of the roUs hrd not been correct there was probably such a defect of parties as would bave been fatal to the plaintiff's case, and it is fair to infer that if the lord chancellor had not approved the ruling the question would bave been noticed. At ail events, the decision of the master of the rolls was submitted to, when, if wrong, it might bave been reversed. However, the case of Curtis v. Lloyd, 4 Mylne & Craig, 194; S. C. 18 Eng. Ch. 193, is relied on as overruling Booth v. Leycestcr, supra. The latter case was cited before the same lord chancellor who had affirmed it, and it is said he did not follow it or notice it. It was well said in that case, by the solicitor in favor of the motion to dis- miss, that Booth v. Leycester was a case of "very peculiar circumstancea," and had no application to Curtis v. Lloyd. No suggestion was made in this latter case of any injury to the defendant, except thatanother suit could be brought, and the point made was that it was too late after a cause was set for hearing to dismiss it voluntarily. This point was the only one ruled in the case. �It is conceded by the defendants here that under the prac- tice as settled by that case there is no objection to this mo- tion in respect to the time at which it is made ; but they contend that at no time after they bave pleaded an estop- pel, like that relied on by them, can the plaintiff endanger that defence by a voluntary dismissal, and that this case falls within the exceptions to the general rule. The same thing may be said of Carrington v. Holly, 1 Dick. 280. The ����