1 Rawle 341 | Pa. | 1828
(after shortly stating the facts,) delivered the opinion of the court. ,. .
I consider the discontinuance of this suit, on the 28th day of July, 1828, by Charles Snider, irregular and void. ' The authority to discontinue, was to Obed Fahnestock, perspnally, and ought to have been strictly .pursued. Charles Snider had no authority from the bank to discontinue their suit, or move in the action; he, in fact, in this respect, was a stranger to-the bank; and at the time he'recorded, or entered the discontinuance, had nothing before him, showing any authority to him for doing so. If so, his act was void, and could not operate as.a discontinuance of the suit.
The right of a party to discontinue his suit, under proper restrictions, is not denied;-indeed, generally speaking,’ if is the right of the-party, but is not always a matter of course, for the plaintiff will not be permitted ,to discontinue where he will gain an advantage by it; nor will' he be indulged in doing so, if prejudicial to his opponent, or when le.ading to vexation or oppression.
In England, in the King’s Bench’ and Common Pleas, it is generally done by obtaining.a side .bar rule 44 for leave to discontinue the action upon the payment of costs.” But from the case, of Belchier v. Gansell, reported in 4 Burr. 2502, not cited at the bar, it is dear, that the rule to discontinue will not be granted, if it be -intended to oppress the defendant by another suit. To me it appears, the case’of Belchier v. Gansell, if not exactly the same as the one before us, is very analogous to it. . In that case, a discontinuance had been entered on- a side bar rule, and.then the plaintiff arrested the defendant again on the very same bonds, only laying the new suit in Middlesex instead of Bondon; but on motion, the discontinuance-was set aside, on the ground, that it was a trick, and an unwarrantable-conduct- in' the attorney, and that it ought not to have the intended effect.
In this country, in our own courts, the law is established in the same way, In Pollock v. Hall, 3 Yeates, 42, Chief Justice Shippen says, discontinuances are the acts' of th.e court, and subject to their discretion. And in Broom v. Fox, 2 Yeates, 531, the court say,
Judgment reversed.