Page:Federal Reporter, 1st Series, Volume 4.djvu/123

 STEVENS V. THE BAILBOADS. ' 109 �Bladen, 2Terh. 31, 33; and'GitteJ^f V. Hawlea, 1 Gh. Ga.40,4o �notany of them fallLwithin the exceptions mentioned by Lord Langdale. Inl Harrisôn, Ch. Pr. (Farrand'sEd. A.D. 180^,) 409, therule is stated thus: "Before appearance, the;plaiii- tiff may obtain leaveto dismiss his own bill, so after appear- ance and before answer, or after answer and before the par- ties have examined witnesses, the plaintiff may generally of course, on motion, have leave to dismiss his own bill, with Costa." �The case of Bossard v. Lester, 2 McCord Ch. 419, cited by plaintifs, was overruled in Bethia v. McKay, Cheves' Eq. 93 ; and, in Bank v. Rose, 1 Eich. Eq. 292, one of the ablest of our equity courts, by the mouth of a most eminent chancellor, after an elaborate examination of the subjeet, takes the same Tiew Lord Langdale did, and reaches the same conclusion I tave here expressed, It is said in Butler v. Bulkeley, 2 Swanst. 396, (373) that "there is no rule of practice in thia court "which does-not yield to special circumstances." Numer- ■DUS otber cases have been cited from the state reipott's, but I deem it unnecessary to further notice them. None of them deny the qualification, or limit it to rights acquired under a deeree. �Other objections are taken, such as that the defendants having answered under oath are entitled to the benefit of ! the answer as evidence; that by a dismissal the plaintiff s dan defeat thîs right, and in a new bill waive the oath, under the . amendment of the forty-first rule promulgated December, 1871; that there are rights to be adjudicated as between the defendants themselves; and that these plaintiffs shall net be allowed, by what the defendants' counsel call "arbitrary and whimsical conduct," to deny them a voice in the determina- iiion of this important litigation by dismissing the bills against tihese defendants while prosecuting ail the others in the series against the other railroads. �I am inclined to think that none of these objections are ienable to qualify the right to dismiss in the present state of the practice, but it is not necessary to decide these points in the view I take of the fîrst objection considered. The injury ����