Page:Federal Reporter, 1st Series, Volume 4.djvu/121

 BTEVENS V. THE BilLEOiDS. 107 �only question there was as to the time at which the mo- tion could be made, and there were no special circum- Btances of injury relied on as an objection to the motion. �In Badger v. Badger, 1 Cliff. 237, the second suit had been brought, and the question was whether the first, which had been dismissed, was a bar. The replication to the plea denied that publication had passed, and averred that the bill had been voluntarily dismissed, no objection being made thereto) and it may be added that nothing in the case showed any especial injury to the defendant, or other prejudice than the ordinary inconvenience of being vexed with two suits, as to which the payment of costs seems to be regarded as compen- sation. The learned circuit justice recognizes that the rule allowing a dismissal is not absolute, when he says that the plaintiff might dismisB his bill at any time before a hearing on the meritSj upon payment of costs, "unless, perhaps, there had been some order or proceeding in the cause confer- ring rights upon the respondent which would be dfefeated or impaired by allowing that order." He had no occasion to examine, these exceptions to the general rule, and expresses no opinion on the subject. �The case of Booth r. Leycester is conclusive againsi tho position that the right protected by this exception must arise eut of some order i or decree entered in the case, It may arise out of any proceeding in it, and may be found in the nature of the defence, the condition of the pleadings, the agreement of the parties, or any circumstances appearing of record in the case which show that it would be inequitable to allow the dismissal. In regard to the attack made on the authority of Booth v. Leycester, both by counsel in Cùrtis v. Lloyd and here, it may be said that when so eminent an equity judge as Lord Langdale says he has examined the practice and corrects an impression before that entertained by himself, as it is now entertained by learned counsel in this case, I must take it to be as he raies, unless he has been put in error by the authorities produced. Matters of practice cannot be decided wholly upon adjudicated cases, and the master of the roUs in 1838 is a far better exponent of what ����