Page:Federal Reporter, 1st Series, Volume 9.djvu/364

 YOVSQ V. GRAND TBUNK EY. OP CANADA. Sid �out leave of court. Under the practice now prevailing in this state this right is recognized, except that wheire a counter-claim is involved there cannot be such a discontinuance of the whqle case as would defeat a trial upon the counter-claim. Bertschy v. McLeod, 32 Wis. 205; S. C. 33 Wis. 176; S. C. 34 Wis. 2M. �In the case at bar no counter-claim is set up. It was admitted on the argument that the plaintiii has the right to discontinue his present entire suit. If this be so, — if, in other words, he has the right to discontinue as to all the causes of action, — why has he not the right to discontinue as to one of them ? Suppose the case should proceed to trial in its present form, and the plaintiff should oiier no proof in support of two of the causes of action, would it not be the duty of the court, on application of the plaintiff, to direct the jury to find for the defendant upon those causes of action as in a case of nonsuit ? Clearly it would ; and in such case the court, in accord- ance with the usual practice, would enter judgment without prejudice. This I regard a conclusive test upon the question here presented. For if the plaintiff would lose the right to discontinue at the trial, or at that stage to take a judgment of nonsuit as to either or any of the causes of action, it follows as a logical conclusion that the right to discontinue now may be asserted and should not be denied. �But it is contended by the learned counsel for the defendant that to permit the plaintiff to discontinue as to two of the causes of action and prosecute his suit upon the one remaining would involv© a dis- regard of the rule whieh forbida a splitting up of demands where all should be joined in one suit; and Bendernagle v. Cocks, 19 Wend. 207, and Reformed Protestant Duteh Church \. Brown, 54 Barb. 191, are cited. The rule invoked, however, goes no further than against several actions for the same wrong or on the same contract, or on several demands resting in matters of account which may be joined and sued for in the same action. And the cases cited reach only to this extent, for they admit that the rule does not extend to distinct contracts. In the syllabus to Bendernagle v. Cocks, supra, the de- cision is correctly stated, and is to the effect that where a party has several demands or existing causes of action growing out of the same contract, and if the demands or causes of action be split up and a suit brought for part only and subsequently a second suit is brought for the residue, the first action may be pleaded in abatement or in bar of the second action. That case was one of breaches of several covenants contained in the same instrument. The case at bar is one where each cause or right of action springs from an indepeudent ��� �