cently determined that a plaintiff is entitled, at any time before the cause has been actually heard, to dismiss the bill on payment of costs; but a plaintiff cannot of course obtain an order to dismiss his bill upon payment of costs, where such dismissal may prejudice the defendant; and where a plaintiff, in a cross-suit, obtained an order as of course to dismiss his bill after the original bill and the cross-bill had been set down to be heard together, the order was held to be irregular. (Booth v. Leycester, 1 Keen. 247). A bill having been dismissed, with costs, on the non-appearance of the plaintiff's solicitor, the cause was, upon a petition supported by affidavit, ordered, under the circumstances, to be set down again to be heard upon payment of costs by the plaintiff. (Hale v. Lewis, 2 Keen. 318).

After decree, the bill cannot be dismissed even by consent, except upon a rehearing or an appeal. (Lashley v. Hogg, 11 Ves. 602). Whether a pauper plaintiff can dismiss without payment of costs does not seem to be quite clear. (Pearson v. Belchier, 3 Bro. C. C. 87, Belt's ed.). One co-plaintiff can dismiss the bill upon payment of costs without the consent of the others, or even notice to them; (Langdale v. Langdale, 13 Ves. 167); but the plaintiffs thus withdrawing from the suit will be put upon terms so as not to injure the other plaintiffs. (Holkirk v. Holkirk, 4 Madd. 50). The general rule is, that where a bill is dismissed for want of prosecution, it shall be dismissed with costs. This rule, like every other, willbend to circumstances. Thus, where, after the filing of the bill, the defendant took the benefit of the Insolvent

Debtors' Act, and in his schedule admitted the plaintiff to be a creditor for the subject-matter of the suit; the defendant afterwards moved to dismiss the bill for want of prosecution, with costs. The Court ordered the bill to be dismissed, but without costs, the defendant having by his own act destroyed the subject-matter of the suit. (Blanshard v. Drew, 10 Sim. 240).

Where a plaintiff files a replication, after being served with notice of motion to dismiss, but before the order is made, no order ought to be made on the motion, except for the plaintiff to pay the costs of it. (Corporation of Dartmouth v. Holdsworth, 9 Sim. 383). In a similar case, the plaintiff, after filing the replication, informed the defendant that he had done so, but did not tender the costs of preparing and serving the notice of motion. It was held that the defendant was entitled to the costs of the motion. (Att.-Gen. v. Cooper, Id. 379).

In general, the defendant cannot move to dismiss the bill till he has put in his answer; but in Adamson v. Hall, (Turn. 258), one of the coplaintiffs having died, by which the defendant was precluded from putting in an answer, the Lord Chancellor intimated his opinion, that the plaintiff must submit to have the bill dismissed, or must revive. When there are two plaintiffs, and one becomes bankrupt, the bill may be dismissed upon the usual motion; (Caddick v. Masson, 1 Sim. 501); but where there is only one plaintiff who becomes bankrupt, the proper course is, it seems, to move that the bill be dismissed without costs within a limited time, unless the assignees file

a supplemental bill; (Sharpe v. Hullett, 1 Sim. 496); but it appears the Court would not allow the bill to dismissed at an earlier period than it would have done, had the plaintiff not become bankrupt. (16.)

CHAPTER XXVIII.

STAY OF PROCEEDINGS.

1. Stay of Proceedings in a 2. Stay of further Proceed

Stay of Proceedings in a Second Suit.

WHERE there is a prior decree and a second suit for the same accounts, and no further relief sought than can be had before the Master under the first suit, the proper course is not to answer, but to move that the proceedings in the second suit may be stayed, and that the plaintiff may go in before the Master in the first suit. If the second suit pray for further relief than can be had in the first suit, then the defendant must answer; and the proper course is to insist, in the answer, upon the first suit as a bar to a second decree for the same objects. Thus, where, after a decree for the administration of assets in an amicable suit, a creditor had filed a bill praying the usual ac

counts (which had been directed by the first decree), and also to have the assets marshalled (which was not prayed for or decreed in the first suit), the Court made a second decree, directing the usual accounts and the assets to be marshalled, with liberty to the Master to use the accounts taken under the former decree. (Pott v. Gallini, 1 Sim. & Stu. 206). There being two suits to take executors' accounts, and a decree by consent having been obtained in the second, on motion the proceedings in the first suit were stayed, and the prosecution of the second given to the plaintiff in the first. (Hawkes v. Barrett, 5 Madd. 171). In Anson v. Towgood, and Shepherd v. Towgood, on a motion in the first suit to stay proceedings in the second, the Vice-Chancellor said, "If the second had sought only the same decree as the first, the Court would have interfered to protect the trust estate from unnecessary expense, having the means to secure to the second plaintiff the same advantage under the first decree, as if he had himself obtained a decree. But the second suit has a further object, and the plaintiff may be entitled to a very different decree*, and the prior decree is therefore no reason why the second suit should not be prosecuted. (6 Madd. 374).

A residuary legatee filed a bill against the personal representatives of a testator for an account and payment; before decree in that cause, a creditor of the testator upon a bond, in respect of which no interest

* See the decree, accordingly, of Sir Thomas Plumer, M. R., 1 Russ. & Turn. 393.

had been paid, or acknowledgment of debt made, for upwards of twenty years, filed a creditor's bill against the same representatives, and the defendants, by their answer to the second bill, admitted the existence of the bond debt; afterwards the plaintiff in the first cause obtained the common decree in a residuary legatee's suit, and the defendants thereupon moved for and obtained an order, that all further proceedings in the second cause might be stayed: the Lord Chancellor, on appeal, discharged the order, and in the second cause made the common decree in a creditor's suit, and directed the report to be made in both causes. (Budgen v. Sage, 3 My. & Cr. 683).

Where two suits are instituted in the Court of Chancery, the Court will not interfere and restrain the second suit, on a suggestion that both suits are for the same matter, nor direct an inquiry as to the fact; the regular way of obtaining this reference being by plea; (Murray v. Shadwell, 17 Ves. 353); except where several bills are brought by the same persons, or in the case of an infant, where several bills are brought by several prochein amys: for where the infant is interested in the suit, the Court will interpose and stay proceedings on one of the bills; but the rule of the Court has never been carried further, nor could it be without the Court acting arbitrarily; "for every person in a free country, as this is, has a right to bring his suit, and be heard." (Per Lord Hardwicke in Gage v. Bulkley, Amb. 103). In the case of infants such a motion is of course. (Sullivan V. Sullivan, 2 Mer. 40).

Where, on a reference whether two suits be for