HARVEY v. HARVEY, 2 Del. Cas. 10 (1793)

Read’s Notebook, 14.[*]

HARVEY v. HARVEY.

Circuit Court of the United States, Dover.
October, 1793.

[*] This case is also reported in Bayard’s Notebook, 45; Wilson’s Red Book, 12.

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 on the business and had nearly agreed upon an award, when in the vacation plaintiff entered a discontinuance

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of the action on the clerk’s docket and gave notice of it to the auditors.

At the term there was a rule to show cause obtained why the discontinuance should not be struck off the docket.

Levy for plaintiff. Bayard for defendant.

The Court composed of PATTERSON, Justice of the Supreme Court of the United States and BEDFORD, District Judge, declared the opinion that if an award be not made within the time limited by a rule of reference, the rule is determined if not continued by consent of parties, and were clear that during the continuance of the rule plaintiff cannot discontinue; if he does, it is irregular and will be struck off.

Rule absolute.

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