Page:Federal Reporter, 1st Series, Volume 4.djvu/122

 108 FEDERAL REPORTER. �the practice was at that time than any American judge at this distance from the time fixed for our guidanca bj the equity rules, Equity Eule 90. �The same lord chancelier, whose ruling in Curtis v. Lloyd is BO much relied on, said, in Cooper v. Lewis, 2 Phil. 177, 181; S. C. 22 Eng. Ch. 181, that "the plaintif! is allowed to dismiss his bill on the assumption that it leaves the defend- ant in the same position in which he would have stood if the suit had not been instituted ; but that is not so where there bas been a proceeding in the cause which has given the de- fendant a right against the plaintiff. " In that case it was an order on a demurrer, from which the defendant oould appeal. Here it is the plea of an estoppel, on which the defendants may have a decree against the plaintiffs personally, in the sense that they need to act upon them by iujunction at the hearing; and if now they are allowed to leave the court they may not only rid themselves of the defence by transfer of the bonds, but drive the defendants to other states for redress, By general order No. 117 of 1815, 29 Eng. Ch. E. Preux 66, the practice was regulated definitely by a rule which is con- eonant with every eense of justice, and the plaintiff is not allowed to dismiss, or make default, after the cause is set down for hearing, without its being equivalent to a dismissal on the merits. This rule is not binding on us, but it has been adopted in many states, either by rule or statute. Badgcr y. Badger,suprai Howard y.Bughcc, 25 Ala. 648; Kean v. La- throp, 58 Ga. 355. �The existence of this rule, so soon after Booth v. Lcyccsier and Curtis v. Lloyd, accounts for the f act that there are no later cases on the subject cited by the text writcrs. I have consulted ail the Works of practice, old and new, and ail the cases I could find accessible to me, and the general rcsuli is that whUe they say with one accord that it is a mattcr of course to allow the plaintiff to dismiss at any time before the hearing upon payment of the costs, none of them deny tlio qualification to the rule; and the cases generally citcd ante- rior to those already mentioued, namely, Anonymous, 1 Ves. Jr. 140 ; Dixon v. Parks, Id. 401, 402; Comitess of riymoaih v. ����