136 Mass. 192 | Mass. | 1883
In actions at law, the right of a plaintiff to become nonsuit, or to discontinue at any time before a trial is begun, is undoubted. Burbank v. Woodward, 124 Mass. 357. The same rule, in substance, prevails in suits in equity in which the plaintiff brings the bill for his sole benefit and no other person is interested in its maintenance.
In such cases, it is a matter of course to permit a plaintiff to dismiss his bill at any time before a hearing, upon payment of the costs. 1 Dan. Ch. Pl. & Pr. (5th Am. ed.) 790—792. Burras v. Looker, 4 Paige, 227. Cummins v. Bennett, 8 Paige, 79. Such an order of dismissal is in the nature of a nonsuit at law.
In the case before us, the plaintiff moved “ for leave to enter a discontinuance.” This was informal, but it is equivalent to, and may be treated as, a notice for an order dismissing his bill.
It may be doubtful whether the decree passed in this case would operate as a bar to a new bill; but we are of opinion that, in, order to save any question as to its effect, and fully to preserve the rights of the plaintiff, it should be modified so as to stand as a decree dismissing the bill without prejudice, and with costs.
Decree accordingly.