master's report, the party excepting opens the argument; but where both parties except, the complainant's counsel is first heard upon his exceptions, and then the defendant's counsel answers him, and opens the argument upon his own exceptions.72 Where the arguments have been finally closed, there can be no further argument unless the court should reach some point where they desire reargument, and request the same of the counsel, or, upon application, reopen the cause for further argument."

§ 693. Dismissal on final hearing.

Where a bill fails to state a case proper for relief in equity, the court will dismiss it at the hearing, though no objection has been made in the pleadings.74 Where the complainant fails to make out his case, the court will dismiss the bill at the hearing.75 A bill will be dismissed where the evidence is too contradictory or uncertain to warrant a decree.76 A bill will be dismissed on the ground of misjoinder or multifariousness on the hearing only where the court finds itself embarrassed thereby to such an extent as to prevent it from administering appropriate relief." Where a cause is by consent submitted for hearing on bill, answer, and replication, without proofs, and it appears on the face of the bill that there is no equity in it, the bill will be dismissed.78 If, on the hearing, it is discovered that the cause is not matured for hearing as to some of the defendants, against

721 Barbour, Ch. Pr. 318.

73 Lawrence v. Dana, 4 Cliff. 1, Fed. Cas. No. 8,136.

74 Salamone v. Keiley, 80 Va. 86; Green v. Massie, 21 Grat. (Va.) 356; Hudson v. Kline, 9 Grat. (Va.) 379; Chicago Public Stock Exchange v. McClaughry, 148 Ill. 372, 36 N. E. 88.

75 Mounce v. Byars, 11 Ga. 180; Meux v. Anthony, 11 Ark. 411, 52 Am. Dec. 274; Union Pac. Ry. Co. v. Harmon, 10 U. S. App. 653, 54 Fed. 29; Judd v. Seaver, 8 Paige (N. Y.) 548.

76 Field v. Oppenstein, 98 Ill. 68; Vermillion v. Bailey, 27 Ill. 230; Marvin v. Hampton, 18 Fla. 131.

77 Annin v. Annin, 24 N. J. Eq. 184. See Brinkerhoff v. Brown, 6 Johns. Ch. (N. Y.) 139.

78 Winkler v. Winkler, 40 Ill. 179. See Reece v. Darby, 5 Ill. 159; Edwards v. Beaird, 1 Ill. 70.

whom the complainant appears to have a claim in equity, the bill ought not to be dismissed on the merits, but only as to those against whom there is no equity. As to the others, it should be sent back for further proceedings, although the cause was set prematurely for hearing on the motion of the complainant.79

§ 694. Mode of dismissing bill on hearing.

If a bill is dismissed on the hearing, on a mere defect of form of the pleadings, and not on the merits of the case, it should be dismissed without prejudice to the complainant to institute a new suit if he thinks proper to do so. 80 Unless the dismissal is accompanied with such a direction, it may be pleaded in bar to a new suit.81 When a case is prematurely submitted, the court may either set aside the submission or dismiss the bill without prejudice. It should not dismiss the bill on the merits.82 A decree dismissing a bill without prejudice does not operate as a bar to a new suit, which the party might institute, nor does it debar the defendant of any defense he may be entitled to make to the new suit, and it confers no right or advantage on the complainant, and it will not have the effect of excepting, from the time prescribed by the statute of limitations, the time during which that suit was pending.83 It is said that a bill will not be dismissed without prejudice where, from the pleadings and proofs, there is not much probability that the complainant could derive any benefit from further litigation.84 On dismissing a bill permission to sue again.

79 Key v. Hord, 4 Munf. (Va.) 485. See Cutter v. Thompson, 51 Ill. 531.

80 1 Barbour, Ch. Pr. 323; Crosier v. Acer, 7 Paige (N. Y.) 137; Cobb v. Baker, 95 Me. 89, 49 Atl. 425; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886.

81 1 Barbour, Ch. Pr. 323; Mitford, Eq. Pl. 237.

82 Moore v. Murrah, 40 Ala. 573; Bank of Kentucky v. Milton, 12 B. Mon. (Ky.) 340; Wright v. May, 40 Ala. 550.

83 Nevitt v. Bacon, 32 Miss. 212, 66 Am. Dec. 609.

84 Anthony v. Peay, 18 Ark. 29. See Doggett v. Lane, 12 Mo. 215, holding it to be discretionary with the court to either dismiss it without prejudice, or render a final decree.

is properly denied where the amount involved is trifling, and there is a legal remedy.85 Where a full hearing has been had, a cause should not be dismissed without prejudice, against the wishes of both parties.86 It is of great importance, where a bill is dismissed on the hearing, without prejudice, to bring a suit at law, to have the same appear in the decree. The presumption is, where a bill is dismissed upon the hearing, that there was a final determination of the cause, and therefore that no new action can be brought.87

85 Gamble v. East Saginaw, 43 Mich. 367, 5 N. W. 416. See, also, on this subject, Hurt v. Jones, 75 Va. 341; Evans v. Wells, 7 Humph. (Tenn.) 559; Thruston v. Masterson, 4 Dana (Ky.) 126; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886.

86 Lake St. Elevated R. Co. v. Ziegler, 99 Fed. 114.

87 Foote v. Gibbs, 1 Gray (Mass.) 413; Durant v. Essex Co., 7 Wall. (U. S.) 107; Garrick v. Chamberlain, 97 Ill. 623; Bigelow v. Winsor, 1 Gray (Mass.) 299; Perine v. Dunn, 4 Johns. Ch. (N. Y.) 140; Williams v. Hollingsworth, 5 Lea (Tenn.) 358; Taylor v. Yarbrough, 13 Grat. (Va.) 183; Da Costa v. Dibble, 40 Fla. 418, 24 So. 911; Martin v. Evans, 85 Md. 8, 36 Atl. 258; Lyon v. Perin & Gaff Mfg. Co., 125 U. S. 698; Edgar v. Buck, 65 Mich. 356, 32 N. W. 644; Phillips v. Wormley, 58 Miss. 398. The direction that a bill be dismissed without prejudice will be inserted where it is dismissed in consequence of facts not having been properly put in issue, or where the agreement for the specific performance of which the bill was filed turns out, upon the evidence, to be different from that actually proved, or where it appears clear that the complainant in a bill for specific performance is entitled to compensation, although he is precluded by the form of his bill from insisting upon it. 1 Barbour, Ch. Pr. 324; Stevens v. Guppy, 3 Russ. 171; McNeil v. Cahill, 2 Bligh, 263; Woolam v. Hearn, 7 Ves. 211; Lindsay v. Lynch, 2 Schoales & L. 1. In general, when a bill is ordered to be dismissed upon a contingency, then the rule is that such orders are not conclusive unless the words "without further order" are added, and that, where such words are omitted, the defendant must apply for and obtain an absolute order of dismissal. 1 Barbour, Ch. Pr. 324; Stevens v. Praed, 2 Cox, 376. In this respect, however, the rule acted upon where an order is made for a case to stand over for a limited time, with liberty to the complainant to add parties, and, in default thereof, that the bill should stand dismissed with costs, is different, for it seems, in such cases, the bill is actually out of court without further order because the defendant has it not in his power to set it down again in a fit state to be heard, as he is not the person to add the parties. 1 Barbour, Ch. Pr. 324. See supra, §§ 577, 579.

§ 695. Form of order dismissing bill on hearing.

[Title of court and cause.]

This cause coming on to be heard upon the bill of complaint herein, the answer of the defendant thereto, and the replication of the complainant to such answer, and the depositions taken in the said cause, and oral evidence introduced in open court, and the arguments of solicitors for the complainant and defendant, upon due consideration of the pleadings and the evidence and such arguments, and the court being fully advised in the premises,

It is ordered, adjudged, and decreed that this suit be and the same is hereby dismissed out of court for want of equity [or, if without prejudice, "without prejudice"], with costs to the defendant to be taxed.

$696. Reopening cause after hearing.

After the cause is heard, and before a decree is rendered, it is discretionary with the court whether or not it will reopen the cause and allow new evidence to be introduced, or the case to be reargued.88 After the cause has been heard, neither party has a right to file any paper in the cause except by leave of court.89 The application to put in newly-discovered evidence should show that the party could not, with reasonable diligence, have obtained such evidence prior to the hearing.90

697. Retaining bill with liberty to bring an action.

The court in some cases will, notwithstanding it dismisses the bill, reserve to the complainant the right to bring an action at law, and will sometimes, instead of making a decree for immediate dismissal, direct that the cause be retained for a specific time, with liberty to the complainant, in the mean

88 Wood v. Mann, 2 Sumn. 316, Fed. Cas. No. 17,953; Gainty v. Russell, 40 Conn. 450; Sharp v. Wyckoff, 39 N. J. Eq. 95; Washburn & Moen Mfg. Co. v. Chicago Galvanized Wire Fence Co., 119 Ill. 30, 6 N. E. 191; Planters Bank of State of Mississippi v. Courtney, Smedes & M. Ch. (Miss.) 40. See supra, § 691.

89 Union Sugar Refinery v. Matthiesson, 3 Cliff. 146, Fed. Cas. No. 14,398.

90 Hitchcock v. Tremaine, 9 Blatchf. 550, Fed. Cas. No. 6,540. See, relative to introducing evidence after hearing, Lake Shore & M. S. R. Co. v. McMillan, 84 Ill. 208. See supra, § 691, and note 67.

time, to proceed at law, as he shall be advised. The decree in such cases directs that, if the complainant shall not proceed at law and go to trial within the time limited, the bill is from thenceforth to stand dismissed, with costs; but if he shall do so, the court reserves the consideration of costs and further directions until a future time.91 The court retains a bill with liberty to proceed at law in cases where it is necessary for the complainant to establish his right at law in order to found the equitable relief. The practice cannot be used to enable the complainant to try whether he has any claim at law, and, if he fails there, to come into equity to try to raise an equity.92 In decrees of this description, under the later practice, further directions were only reserved in the event of a trial taking place, and, where default was made in bringing the action, the bill was not out of court unless the decree expressly directed that, upon default, the bill was to stand dismissed "without further order."93

§ 698. Form of order retaining bill, with liberty to bring an

action at law.

[Title of court and cause.]

This cause having been brought to a hearing upon the pleadings and proofs therein, and having been argued by W. C. N., of counsel for the complainant, and by J. E., of counsel for the defendant,

It is ordered, adjudged, and decreed, and this court, by virtue of the power and authority thereof, doth order, adjudge, and decree, that the bill in this cause be retained for twelve months, with liberty to the complainant, in the meantime, to proceed at law touching the matters in question in this cause, as he shall be advised.

And it is further ordered, adjudged, and decreed that, if the complainant shall commence an action at law and proceed to the trial

911 Barbour, Ch. Pr. 324; Brown v. Cranberry Iron & Coal Co., 25 U. S. App. 692, 72 Fed. 103. See supra, § 686.

921 Barbour, Ch. Pr. 325; Walton v. Law, 6 Ves. 150; Harmood v. Oglander, 6 Ves. 225. See, however, Leeds v. Corporation of New Radnor, 2 Brown Ch. 518.

93 1 Barbour, Ch. Pr. 325; Seton, Decrees, 357. See, on this subject, Decker v. Caskey, 1 N. J. Eq. 427; Easton v. New York & L. B. R. Co., 30 N. J. Eq. 236; American Dock & Improvement Co. v. Trustees for Support of Public Schools, 36 N. J. Eq. 16.