their agreements.23

The court has held that a verbal agreement

to dismiss must be complied with.24

§ 564. Dismissal of part of a bill.

There is a difference of opinion as to the right of the complainant to dismiss his bill as to part of the relief prayed, and proceed with the residue. It has been said that there is no doubt but that a complainant has the right to dismiss his suit in whole or in part.25 On the other hand, it has been said that there is no precedent for allowing a complainant to voluntarily dismiss his bill as to part of the relief prayed for in it, and to permit him to proceed with the residue.26

$565. Dismissal by one of several complainants.

It is held that a bill may be dismissed by one co-complainant, where the defendant consents thereto, without the consent of the other complainant ;27 but this rule is subject to the qualification that it will not in any way injure the other complainant.28

$566. Dismissal of bill by one in contempt.

It is held that one in contempt cannot dismiss his bill until he has purged himself of his contempt.29

$567. Dismissal of bill as to portion of defendants.

A complainant can discontinue as to some of the defend

23 Coultas v. Green, 43 Ill. 277.

24 Coultas v. Green, 43 Ill. 277; Toupin v. Gargnier, 12 Ill. 79.

25 Lyster v. Stickney, 12 Fed. 609.

26 Camden & A. R. Co. v. Stewart, 19 N. J. Eq. 69.

27 1 Barbour, Ch. Pr. 227; Langdale v. Langdale, 13 Ves. 167; Bathew v. Needham, Prac. Reg. 179.

281 Barbour, Ch. Pr. 227; 1 Daniell, Ch. Pl. & Pr. (4th Ed.) 792; Holkirk v. Holkirk, 4 Madd. 50; Winthrop v. Murray, 7 Hare, 152. See Beach, Mod. Eq. Pr. § 456.

29 Smith v. Smith, 2 Blackf. (Ind.) 232; Sea Ins. Co. v. Day, 9 Paige (N. Y.) 247; Elderkin v. Fitch, 2 Ind. 90. See supra, § 559. Mere failure to comply with an interlocutory order of the court does not of itself so place him in contempt as to prevent him from dismissing his bill on payment of costs. Smith v. Smith, 2 Blackf. (Ind.) 232.

ants.30

The rule seems to be different where the defendants are jointly interested.31

§ 568. Costs on voluntary dismissal.

Dismissal before appearance is without costs to the complainant.32 The rule is well settled by the English decisions that the court will not, after appearance, make an order dismissing a bill on the complainant's application without costs, unless by consent of the defendant.33 A complainant suing as a poor person. may dismiss his bill without costs, save where his admission so to sue took place subsequently to the filing of the bill. This is also true where the defendant, by his own act, has rendered it impossible for the complainant to attain the object of his suit. So, a personal representative, having commenced a wrong suit by mistake, or subsequently finding it useless to proceed, may discontinue without payment of costs.34 An order'granting leave to dismiss upon payment of costs does not terminate the suit, except at the election of the defendant, until the costs are paid. It is optional with the defendant whether he will consider the case dismissed, and procure the enforcement of

80 Bradley v. Merrill, 88 Me. 319, 34 Atl. 160. See, also, Coston v. Coston, 66 Ga. 382; Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837; Willard v. Wood, 1 App. D. C. 44. He may do so upon payment of costs, or without, if they are not claimed by the respondent. Bradley v. Mer

rill, 88 Me. 319, 34 Atl. 160.

31 Willard v. Wood, 1 App. D. C. 44. A bill may be dismissed as against one defendant without being dismissed against the others, but that general rule does not apply to executors or administrators who are joint defendants. Willard v. Wood, 1 App. D. C. 44. Where a bill against two executors of an estate is, by order of complainant, dismissed as against the one who has been the active executor in the administration of the estate, such order operates to dismiss the bill as against the other. Willard v. Wood, 1 App. D. C. 44.

32 Thompson v. Thompson, 7 Beav. 350.

33 1 Barbour, Ch. Pr. 225; Dixon v. Parks, 1 Ves. Jr. 402; Lewis v. Germond, 1 Paige (N. Y.) 300; Anonymous, 1 Ves. Jr. 140; Fidelle v. Evans, 1 Cox, 27.

341 Barbour, Ch. Pr. 225, 226; Arnoux v. Steinbrenner, 1 Paige (N. Y.) 82; Knox v. Brown, 2 Brown Ch. 185.

the order to pay costs or to proceed as if no order had been granted.35

§ 569. Effect of voluntary dismissal.

The voluntary dismissal by the complainant of his bill before a decree or decretal order has been made affecting the rights of the parties is no bar to another suit for the same cause.36 It is always desirable, in case of a voluntary dismissal, to have the order recite that it was dismissed without prejudice.37 An order directing the payment of money into court is vacated by the dismissal of the bill on motion of the complainant.38

§ 570. Form of order of voluntary dismissal.

[Title of court and cause.]

This cause coming on this day to be heard, the complainant being present in open court by E. F., his solicitor, and the defendant by G. H., his solicitor, and the complainant moving for leave to dismiss his bill in this cause, without prejudice, on motion of E. F., solicitor for com plainant, and the court being fully advised in the premises,

it is ordered that leave to dismiss said bill, without prejudice, be ard the same is hereby granted upon the said complainant paying to the said defendant his taxed costs in this cause.

Jerome v. Seymour, Walk. (Mich.) 359; Cummins v. Bennett, a Paige (N. Y.) 79; Saxton v. Stowell. 11 Paige (N. Y.) 526.

36 1 Smith, Ch. Pr. 338; Carrington v. Holly, 1 Dickens, 280; Sea Ins Co. v. Day, 9 Paige (N. Y) 247; Mabry v. Church well, 1 Lea (Tenn.) 416; Stevens v. Railroads, 4 Fed. 97; Vaneman v. Fairbrother, 7 Blackf (Ind.) 541; Babb v. Mackey, 10 Wis. 314; 1 Barbour, Ch. Pr. 228, Brandlyn v. Ord, 1 Atk. 571; Bowden v. Beauchamp, 2 Atk. 82. It is said that, if a complainant dismisses after the cause has been set for hearing, it will have the effect, unless otherwise ordered by the chancellor, of a dismissal on the merits, and may be pleaded in bar of another suit. Phillips v. Wormley, 58 Miss. 398, citing 1 Daniell, Ch. Pl. & Pr. (5th Ed.) 793. The statement of the text writer is supported by a citation to Ord. in Chancery, xxiii. 13.

37 Kempton v. Burgess, 136 Mass. 192; Bigelow v. Winsor, 1 Gray (Mass.) 299; Lyon v. Perin & Gaff Mfg. Co., 125 U. S. 698; Hollings. worth & Vose Co. v. Foxborough Water-Supply Dist., 171 Mass. 450, 50 N. E. 1037.

38 Etowah Min. Co. v. Wills Valley Min. & Mfg. Co., 121 Ala. 672, 25 So. 720, citing Loeb v. Willis, 100 N. Y. 231, 3 N. E. 177; Cartmell v McClaren, 12 Heisk. (Tenn.) 41.

§ 571. Reinstatement after voluntary dismissal.

There is a difference of opinion concerning the right of a complainant to have his bill reinstated after a voluntary dismissal. In some cases it is held that when he is allowed to dismiss his bill without prejudice, he may move to reinstate it,39 but it is elsewhere held that a bill which has been voluntarily dismissed by the complainant cannot be reinstated unless the dismissal was obtained by fraud.40 It was held that, after a bill had been dismissed for four years, there could be no revival of the suit, so as to permit amendment of the pleadings or the coming in of new parties.41

§ 572. Involuntary dismissal-In general.

In equity the law as to nonsuits has no application.42 A defendant may, however, in equity, in certain instances, move for the dismissal of the bill. Any party may insist that the suit be dismissed as to a person not interested in the subject-matter thereof.43 It is said that it is no objection to the dismissal of a bill having no equity that the motion was made by a defendant while he was in contempt for want of an answer;44 but where the allegations authorize any decree whatever against such defendant, it is error to dismiss it as to him.45 One defendant may move to dismiss the bill for want of prosecution, though his solicitor is also retained for other defendants, who have not answered.16

89 Warner v. Graves, 25 Ga. 369; Gregory v. Pike, 33 U. S. App. 76, 67 Fed. 837.

40 Orphan Asylum Soc. v. McCartee, Hopk. Ch. (N. Y.) 423. See Doss v. Tyack, 14 How. (U. S.) 297; Edwards v. Perryman, 18 Ga. 374.

41 Harris v. Hines, 59 Ga. 427. See Ewing's Heirs v. Handley's Ex'rs, 4 Litt. (Ky.) 346, 14 Am. Dec. 140.

42 Strong v. Weir, 47 S. C. 307, 25 S. E. 157; Woolfolk v. Graniteville Mfg. Co., 22 S. C. 332.

43 Johnson v. Miller, 50 Ill. App. 60.

44 Smith v. Robinson, 11 Ala. 840. See, for consideration of rights of defendant in contempt, Mussina v. Bartlett, 8 Port. (Ala.) 277.

45 Hogan v. Smith, 16 Ala. 600. See, for dismissal at instance of defendant in contempt, Anonymous, 9 Ves. 512; Anonymous, 15 Ves. 174; Cranstown v. Goldshede, 2 Younge & C. 70; Howe v. Grey, 36 Law J. Ch. 488.

46 De Luze v. Loder, 3 Edw. Ch. (N. Y.) 419.

§ 573. Dismissal for want of prosecution.

The court will, on motion of a defendant, dismiss a bill for want of prosecution, where considerable delay has ensued. Thus, where a complainant unreasonably delays compelling an issue as to the defendants, or any of them, or taking the bill for confessed as to those not answering, the defendants as to whom the cause is at issue, if being injured by the delay, may have an order, on proper application and showing, to compel the complainant to speed the cause, or have his bill dismissed.47 A bill will not be dismissed for want of prosecution if necessary parties have not been served, or, being served, have not answered, where there is no negligence on the part of the complainant;48 or after the appointment of a master to take testimony, and before his report, where the complainant is in no more fault with relation to the delay than the defendant;" or where a demurrer is pending, and the defendants may themselves expedite the cause by noticing the demurrer for argument;50 or where the delay was at the request of the defendant, and for his benefit.51 The filing of a replication without taking any further step in the cause is not a compliance with a rule to speed the cause.52 Where, on motion to dismiss for

47 Gilbert v. Van Arman, 1 Flip. 421, Fed. Cas. No. 5,414; Electrolibration Co. v. Jackson, 52 Fed. 773; Morgan v. Currie, 3 A. K. Marsh. (Ky.) 293; Whitney v. City of New York, 1 Paige (N. Y.) 548; Vermilyea v. Odell, 4 Paige (N. Y.) 121; Holmes v. Swilliams, 11 N. C. 371; Colding v. Badger, 3 Rich. Eq. (S. C.) 368.

48 Hoxey v. Carey, 12 Ga. 534. It is held that a bill will not be dismissed for want of prosecution against a co-defendant, who has not been served, until the complainant has been given a reasonable time to procure service on him, and that he will be allowed more than six months, where such defendant resides out of the state. Blanchard v. Bigelow, 109 Fed. 275; Jessup v. Illinois Cent. R. Co., 36 Fed. 735.

49 Warren v. Shaw, 43 Me. 429.

50 McVickar v. Filer, 24 Mich. 241.

51 Person v. Nevitt, 32 Miss. 180.

52 West v. Paige, 9 N. J. Eq. 203. The filing of a replication after notice given of a motion to dismiss the bill for want thereof is good cause against the motion, but it will only be allowed on payment of costs. Griswold v. Inman, Hopk. Ch. (N. Y.) 86. A dismissal for