Opinion
MARCH TERM, 1853.
The court will not, upon the application of the plaintiff, after answer, dismiss a bill in equity without prejudice to the plaintiff's right to bring a new suit, except upon condition that he shall pay the reasonable counsel fees of the defendant, in addition to the ordinary taxed costs.
THIS was a bill in equity, filed October 6th, 1852, and answered February 14th, 1853. Without having taken any further steps in the cause, the plaintiff at the present term moved that the bill should be dismissed, without prejudice to his right to bring a new suit in reference to the matters involved in the present.
The plaintiff moves for leave to have his bill dismissed without prejudice to his right to institute a new suit in reference to the same subject-matter, and that this may be done upon the payment of the ordinary taxed costs. As a matter of right, the plaintiff may have his bill dismissed, without more, upon the payment of costs, but here he asks the court for something beyond this; and where the court has it in its power to grant or refuse a request, it may impose the terms on which it may be granted. The taxed costs of an equity case are entirely inadequate to pay the parties for their expense and trouble, and, therefore, if the plaintiff involves the defendant in a suit which he cannot sustain, or concludes, on fuller consideration, not to prosecute, although the court cannot refuse him a simple dismissal upon payment of costs, yet they will do nothing to put him in a position more favorable for the commencement of a new suit until the defendant has been in some measure indemnified. The motion of the plaintiff is granted only upon condition that he will pay the reasonable counsel fees for the defendant, in addition to the ordinary costs.