izes a defendant, though not required to answer, to put in an answer making an entire new defence, and contradicting his former answer. This was held in Bolton v. Bolton, (z) in which case the court, upon this ground, refused, with costs, a motion to take an answer to an amended bill off the file, which contradicted the original answer, and introduced no less than four new issues or defences. And a defendant may not only answer an amended bill, but he may defend himself from the effect of the amendments by demurrer or plea; as where a complainant amends his bill and states a matter which has arisen subsequent to the filing of the bill, and properly the subject of a supplemental bill or bill of revivor. (a) And it has been held that a defendant may demur to an amended bill, even though he has previously put in a demurrer to the original bill.(b) SECTION III. DISMISSING BILL BY COMPLAINANT. If the complainant, after the putting in of the defendant's answer, conceives that he shall not be able effectually to prosecute his suit, he may apply to the court for leave to dismiss his bill; either as against all the defendants, or against such of them as he thinks he can dispense with, with costs. This is a motion of course.(c) The rule is well settled, by the English decisions, that the court will not, after appearance, make an order to dismiss a bill, on the complainant's application, without costs, except upon the defendant's consent actually given in court; (d) even though the ground of the application be that, upon the hearing of the cause, the court would have ordered it to be so dismissed, and the defendant, although served with notice, does not appear to oppose the motion.(e) But a complainant, where he has been admitted to sue in forma pauperis, may move to dismiss his bill without costs, except in cases where his admission in forma pauperis has taken place subsequently to the filing of the bill.(f) So where a 66. (2) Cited 1 Dan. Pr. 519. (b) Bancroft v. Wardour, 2 Bro. C. C. (c) Dixon v. Parks, 1 Ves. jun., 402. VOL. I (d) Id. ib. Anon. id. 140. See also Lewis v. Germond, 1 Paige, 300. (e) Anon. 1 Ves. jun. 140. Fidelle v. Evans, 1 Cox, 27. 1 Bro. C. C. 267, (f) Prac. Reg. 321. 29 defendant, by his own act, has rendered it impossible for the complainant to attain the object of his suit-e. g., by surrendering a lease, to obtain an assignment of which is the object of the suit, and the defendant afterwards absconds, the court will permit the bill to be dismissed without costs.(g) But not where the object of the suit is defeated by the complainant's own act or procurement.(h) Where also an executor or administrator has commenced a wrong suit, by mistake, or has ascertained that it would be useless to proceed, in consequence of facts subsequently discovered, he will be permitted to discontinue without the payment of costs.(i) In this state it is provided by statute, that upon the complainant in a court of equity dismissing his own bill or petition, or upon the same being dismissed for want of prosecution, the complainant shall pay to the defendant his costs to be taxed; except in those cases where, according to the practice of the court, costs would not be awarded against such complainant upon a decree rendered, on hearing of the cause.(k) It has been decided that this provision only extends to those cases where prima facie the complainant would not be chargeable with costs on a decree dismissing the bill at the hearing; as in the case of suits by executors in right of their testators.() If the complainant would, prima facie, be chargeable with costs if the suit was decided against him at the hearing, the court will not examine the whole merits of the cause merely to ascertain whether there are any equitable circumstances which might excuse him from the payment of costs.(m) If a solicitor files a bill in the name of a person, as complainant, without having a proper authority from him for so doing, the course for the party to pursue, if he wishes to get rid of the suit, is to move that the bill may be dismissed with costs, to be paid by the solicitor filing the bill. This motion may be made by the complainant in person, or he may, by warrant under his hand and seal, disclaim the bill as being brought without his order or privity, and empower some counsel to make the motion.(n) If a bill be exhibited in the name of a married woman, against her husband, it may, upon affidavit that she knew nothing of it, or had not consented to it, be dismissed.(o) A motion to dismiss a bill as having been filed without the privity or consent of the complainant, must be accompanied by an affidavit of the complainant himself that the bill had been filed without any authority from him. And to avoid the effect of such an application, the solicitor against whom it is made, must show distinctly, upon affidavit, that he had a special authority from the party to institute the suit; and it will not be sufficient to assert, generally, that authority had been given.(p) If the name of a persou is made use of in a bill as co-complainant with others, without his consent, he may move that his name be struck out, and that the solicitor who filed the bill may be ordered to pay the costs.(q) Such motion should be made at the earliest possible opportunity after the fact has come to the complainant's knowledge; for if there has been acquiescence or laches on the part of the complainant making the application, it will not be granted.(r) And it seems that even when the suit is not disavowed, one co-com. plainant may dismiss a bill with costs, as far as concerns himself; and it is said that he may do so on motion of course.(s) But in a more modern case,() it is stated that counsel appeared, and that the court refused to make an order for such dismissal, unless upon terms framed so as to protect the other complainants in the suit from injury. The mere circumstance, however, that the rights of the complainant applying to be dismissed are concurrent, with those of the complainants who remain, will not be a sufficient reason for refusing the motion; since any defect which his withdrawal may make in the record, may be supplied by making him a defendant, by amendment.(u) In the case of Langdale v. Langdale, (v) it was held that one of several complainants may have the bill dismissed as to himself, upon consent of the defendant, and without notice to, or consent of his co-complainants. It is a rule that one complainant cannot be examined as a witness for another. In order to procure his testimony, the proper course is to move for an order that his name be struck out of the bill. But as the defendant has a right to the responsibility of each of the complainants for costs, security for the costs up to the time of the application must be given.(w) (p) Prac. Reg. 60. Wright v. Castle, 3 Mer. 12. (q) Wilson v. Wilson, 1 Jac. & W. 457. (r) Dundas v. Dutens, 2 Cox, 235. 1 Ves. jun. 196, S. C. (s) Bathew v. Needham, Prac. Reg. 179. Langdale v. Langdale, 13 Ves. 167. (t) Holkirk v. Holkirk, 4 Mad. 51. (u) 2 Dan. 355. (v) 13 Ves. 167. (w) Loyd v. Makeam, 6 Ves. 145. A complainant may move to dismiss his own bill with costs, as a matter of course, at any time before the decree.(x) After a decree, however, the court will not suffer a complainant to dismiss his own bill unless upon consent(y)—for all parties are interested in a decree, and any party may take such steps to have the effect of it, as he may be advised.(z) And it seems that, after a decree upon a creditor's bill, the bill cannot be dismissed even by consent of all who have come in. There must be a re-hearing or appeal.(a) Though before a decree upon a creditor's bill is had, such a bill may be dismissed by consent, and the money in court paid to the complainants.(b) In cases other than creditor's bills however, if, upon the hearing of the cause, the court has merely directed inquiries, by a reference or issue, to satisfy the conscience of the court preparatory to its giving judgment, the complainant may, before the trial of the issue, or proceeding upon the reference, obtain an order to dismiss the bill with costs.(c) But if the issue has been tried and determined in favor of the defendant, the complainant cannot move to dismiss, because the defendant may have it set down on the equity reserved in order to obtain a formal dismissal of the bill, so as to enrol it as a final judgment, and thereby make it pleadable.(d) With regard to the effect of a dismissal of the bill by the complainant, it may be stated, as a general rule, that a voluntary dismissal of a bill by the complainant, or a voluntary dismissal upon any interlocutory proceeding, will not prevent a new bill from being filed. It is not pleadable unless it is a dismissal by the court upon the hearing.(e) But a dismissal of an original bill on motion of the complainant is a good bar to a bill of revivor and supplement, or either, founded upon it.(f) (x) Carrington v. Holly, 1 Dick. 281. (a) Lashley v. Hogg, 11 Ves. 602. (c) Carrington v. Holly, ubi supra. Anon. 11 Ves. 169. 82. (d) Id. ib. (e) Brandlyn v. Ord, 1 Atk. 571. SECTION IV. MOTION FOR PRODUCTION AND INSPECTION OF PAPERS, &c. General principles respecting.] Previous to the final hearing of a cause, the court only orders the production of books and papers upon two principles-security pending the litigation, and discovery or inspection for the purposes of the suit in this court.(g) And it will not make an order which will amount to an anticipation of the final decree, by giving the complainant any other advantages from the production than those above mentioned.(h) Where the answer admits that the defendant is in possession of deeds or documents, the court will, upon motion or petition founded upon the admission in the answer, and upon evidence that the complainant has a direct and immediate interest in such deeds or documents, grant an order for their production.(i) This is a special motion, and notice must be given of it. A motion for production cannot be founded upon an affidavit that a deed is in the defendant's possession. An admission in the answer is necessary, and in order to obtain such an admission, leave to amend the bill will be given when requisite, although the cause is at issue.(k) If the answer offers to produce the deed or documents for the inspection of the complainant, an order for their production, and giving leave to the complainant to inspect them, will be made on reading the admission and upon notice.(1) A voluntary offer of this nature by the defendant is considered as dispensing with some of those safeguards which the practice affords him. But an offer to produce a deed as the court shall direct, or if the court shall require it, is not a voluntary but a qualified offer which ought not to fix the defendant. It is merely a submission to the discretion of the court, and only binds the party to produce the paper if the court shall think it necessary. And upon such a qualified offer the court will enter fully into the merits of the question as to the right of the complain (g) Watts v. Lawrence, 3 Paige, 159. 6 Mad. 290. (h) Id. ib. Mad. 290. Lingen v. Simpson, 6 (i) 2 Fowl. Ex. Pr. 46, 50. Watson v. Renwick, 4 John. Ch. 384. Eager v. Wiswall, 2 Paige, 369. 1 Jac. & W. 227. (4) Barnet v. Noble, 1 Jac. & Walk. 227. Erskine v. Bize, 2 Cox's Ca. 226. (1) 2 Fow. Ex. Pr. 54. |