Bayard’s Notebook, 45[*]
Circuit Court of United States of Delaware, Dover County.
October 27, 1793.
Before PATERSON, one of the Judges of [the United States] Supreme Court, and BEDFORD, District Judge.
The parties to this suit had, under a rule of court, referred the matters in dispute between them to five auditors who were to report to next term. At the following term no report was made, but the rule of reference was continued by consent. The auditors had several meetings upon the business and had nearly agreed upon an award, when in the vacation plaintiff entered a discontinuance of the action on the clerk’s docket and gave notice of it to the auditors. At this term there was a rule to show cause why the discontinuance should not be struck off the docket; and the matter was argued by Levy for the plaintiff and Bayard for the defendant.
In support of the rule it was said by the counsel for defendant that a plaintiff submitting to a reference abandoned his right to discontinuance. [First,] references are made under an Act of Assembly which gives to awards approved of by the court to which they are returned the effects of verdicts. A power is given by the Act to award as well in favor of a defendant as of a plaintiff. The defendant is therefore in some degree put upon the same footing as the plaintiff; at least has given to him the nature of a defendant in replevin. The plaintiff in replevin cannot discontinue, because the defendant has not merely a negative concern in the suit but has a right to recover against the plaintiff. 1 Leon. 105. It would be absurd if the defendant had a right to recover, and the plaintiff at the same time had a right to disappoint the recovery. Second, after issue joined or demurrer or verdict, plaintiff cannot discontinue without leave of the court. Gilb.C.P. 272, Cro.Jac. 317, 4 Term 360, H.Bl. 100. Third, plaintiff discontinuing during the existence of the rule of evidence is a breach of the rule and a contempt for which the court will grant an attachment and compel the performance of the award. The power of the court to refer an action is derived from the consent
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of the parties; but the authority of the referees is derived from the court. Court has a power to oblige referees to act, 2 Body Laws 218. The referees, deriving their authority from the court, can regularly be discharged from the execution of it only by the court. Such is the practice in Pennsylvania, and it has there been decided in the Supreme Court that it is too late to apply to discharge the rule of reference after the referees have acted. [1] Dall. 430.
Levy, on the other side, contended that the discontinuance was regular and that the plaintiff did not give up his right to discontinue by referring the suit. The action is the suit of the plaintiff, and he has therefore the right to prosecute or determine it at his pleasure. It is true the right is qualified. There are cases where it cannot be exercised without the leave of the court; others in which the plaintiff has proceeded too far to recede, but such is not the present case. Plaintiff may discontinue without leave, 3 Lev. 170. He may discontinue at any time, 3 Lev. 369. Discontinuance permitted by Hale after demurrer and argument, 3 Lev. 440. After judgment not of record and writ of error brought, plaintiff had leave to discontinue upon payment of costs, Barnes 169. Proceedings in replevin are not analogous because plaintiff in replevin, having obtained the goods, should not be suffered by a discontinuance to go off with them.
[BY THE] COURT. If an award be not made within the time limited by a rule of reference, the rule is determined, if not continued by the consent of parties. We are clearly of opinion that during the continuance of the rule the plaintiff cannot discontinue. If he does it is irregular and will be struck off. The proper mode to get rid of a rule, is to apply to the Court to annul it; but the Court will never vacate the rule so as to defeat the agreement of the parties; but on the contrary will take care to carry the agreement into effect.Rule to strike off the discontinuance made absolute.