CHAPTER XI.

DISCONTINUANCE AND DISMISSAL.

SECTION I.-DISCONTINUANCE OF ACTION.

1. Judgment after Notice of Discontinuance-0. XXVI. 3. THE Plt having by a notice in writing wholly discontinued his action, and the Taxing Master having taxed the costs of the Deft at £-, as by the certificate of taxation dated &c. appears, It is this day adjudged that the Deft B. do recover against the Plt A. the said sum of £-.

2. Order to Discontinue-0. xxvi. 1.

UPON motion &c. by counsel for the Plt, and upon hearing counsel for the Defts, and upon reading &c., this Court doth [if so, by consent] order that this action be discontinued; And it is ordered that the Plt A., do on or before &c., pay to the Defts B. and C. their costs of this action, to be taxed [if so, where discontinuance is as to one of several Defts, add:] And such discontinuance and payment of costs are to be without prejudice to the question by whom, or out of what fund, such costs shall be ultimately borne.

3. Counter-claim dismissed by Consent.

UPON the application &c., It is, by consent, ordered that the counterclaim delivered by I. stand dismissed out of this Court as against B. without costs.-Union Bank of London v. Ingram, M. R. at Chambers, 19 April, 1877, B. 798.

NOTES.

By O. xxvI. 1, "the Plt may, at any time before receipt of the Deft's defence, or after the receipt thereof, before taking any other proceeding in the action (save any interlocutory application), by notice in writing wholly discontinue his action against all or any of the Defts, or withdraw any part or parts of his alleged cause of complaint, and thereupon he shall pay such Deft's costs of the action, or, if the action be not wholly discontinued, his costs occasioned by the matter so withdrawn. Such costs shall be taxed, and such discontinuance or withdrawal, as the case may be, shall not be a defence to any subsequent action. Save as in this rule provided, it shall not be competent for the Plt to withdraw the record or discontinue the action without leave of the Court or a Judge, but the Court or a Judge may, before, or at, or after the hearing or trial, upon such terms as to costs, and as to any other action, and otherwise as may be just, order the action to be discontinued, or

any part of the alleged cause of complaint to be struck out. The Court or a Judge may, in like manner, and with the like discretion as to terms, upon the application of a Deft, order the whole or any part of his alleged grounds of defence or counter-claim to be withdrawn, or struck out; but it shall not be competent to a Deft to withdraw his defence, or any part thereof, without such leave."

By Cons. Ord. 23, r. 13, upon which the above order was founded, a dismissal of the bill, upon the Plt's own application after the cause was set down to be heard, or, on his default at the hearing, was, unless the Court otherwise ordered, equivalent to a dismissal on the merits, and might be pleaded in bar to a second suit for the same matter.

Under this rule, the Plt, notwithstanding a pending motion for an injunction, was entitled to dismiss his bill with costs: Markwick v. Pawson, 4 N. R. 528; and see Curtis v. Lloyd, 4 My. & Cr. 194.

By O. XXVI. 3, a Deft may enter judgment for the costs of an action if it is wholly discontinued, or for the costs occasioned by the matter withdrawn if the action be not wholly discontinued, in case such costs are not paid within four days after taxation.

The application to discontinue or to dismiss may, if the Deft consents, be by petition of course, but otherwise by motion or summons.

An application to dismiss certain Defts with their costs, but without prejudice to the question by whom, or out of what fund, such costs should ultimately be paid, may be made by motion ex parte: see Berndston v. Churchill, W. N. (66) 8; Clements v. Clifford, 14 W. R. 22.

The parties by whom, and to whom, the costs are to be paid should be named in the order, with a view to suing out process under O. XLII. 17; and see Re Leeds Banking Co., 1 Ch. 150.

A written notice by the Plt's solrs stating that they are "instructed not to proceed further with the action," is a sufficient notice of discontinuance: The Pomerania, 4 P. D. 195; but see Moore v. Dickinson, 38 W. R. 278; 63 L. T. N.S. 371.

The words "taking any other proceeding in the action," refer to a proceeding which is with the view of continuing the action, not of putting an end to it, as by taking out of Court money paid in satisfaction of claim: Spencer v. Watts, 23 Q. B. D. 350.

Discontinuance of action puts an end to an appeal, which will be simply struck out: Conybeare v. Lewis, 13 Ch. Div. 469.

An amendment which entirely alters the ground of action cannot be treated as a discontinuance: Bourne v. Coulter, 53 L. J. Ch. 699; 50 L. T. N.S. 321. Plt is not entitled to discontinue his action after it has been entered for trial: Matthews v. Antrobus, 49 L. J. Ch. 80.

After a finding of the arbitrator in favour of the Deft on all material points, the Plt will not be allowed to discontinue his action: Stahlschmidt v. Walford, 4 Q. B. D. 217.

Where Plt is induced to discontinue by improper action of Deft (e.g., by adducing false evidence), the remedy for consequent loss is by an independent action: United Telephone Co. v. Tasker, 59 L. T. N.S. 852.

Discontinuance by Plt does not put an end to a counter-claim by Deft: McGowan v. Middleton, 11 Q. B. Div. 464; overruling Vavasseur v. Krupp, 15 Ch. D. 474.

By O. XXVI. 4, "if any subsequent action shall be brought before payment of the costs of a discontinued action, for the same, or substantially the same, cause of action, the Court or a Judge may, if they or he think fit, order a stay of such subsequent action until such costs have been paid."

An action in the High Court, where the subject-matter is under 107., will be dismissed with costs; the High Court having now only the jurisdiction the Court of Chancery and Courts of Common Law had before the Judicature Act: Westbury-on-Severn Rural Sanitary Authority v. Meredith, 30 Ch. Div. 387.

Under O. XIX. 7, a further and better statement of the nature of the claim or defence, or further and better particulars, may be ordered upon such terms as to costs or otherwise as may be just; and r. 8 provides that an order for particulars shall not operate as a stay of proceedings, unless the order otherwise provides.

For forms of orders for particulars, see R. S. C. Appx. K, Forms 11, 12, 12a, 13; and as to particulars generally, v. sup. pp. 36, 37.

SECTION II.-STAY OF PROCEEDINGS.

1. Proceedings stayed until Satisfaction of Judgment in another

Division.

UPON motion &c., This Court doth order that all further proceedings in this action be stayed until after the Plt shall have paid to the Defts the sum of £—, which by the judgment of the Q. B. Division, dated &c., in an action wherein &c., was awarded to be paid by the Plt C. to the Defts M. and G. for their costs of the defence of the said action in the Q. B. Division.-Direction for taxation and payment by the Plt C. of the costs of the Defts M. and G. of this motion.-Cannot v. Morgan, V.-C. M., 16 Dec. 1875, A. 1937.

2. Stay of Proceedings until Payment of Costs by Plt.

UPON motion &c. for the Defts, And upon hearing counsel for the Plts, and upon reading &c. (order directing taxation and payment of costs by Plts, the Taxing Master's certificate, &c.), This Court doth order that all further proceedings in this action be stayed until the costs by the said order directed to be taxed and paid be paid by the Plts W. &c. to the Defts B. &c.; And the Defts' costs of this application, and consequent thereon, are to be costs in the action.-White v. Bromige, V.-C. H., 4 Aug. 1877, B. 1620.

For the subsequent order to dismiss the action for want of prosecution without further order, in default of payment of such taxed costs by a day specified, see S. C., SECT. III., inf. 119.

For order upon adjourned summons staying all further proceedings in an action, on the ground that it was frivolous, vexatious, and an abuse of the process of the Court, see Edmunds v. A. G., V.-C. M., 9 March, 1878, A. 627; 26 W. R. 550.

3. Stay of Proceedings without Costs on Submission by Defts to Pit's Demand.

UPON motion &c. for the Defts &c., and the Defts (exors of a will under which Plt claimed an annuity) by their counsel undertaking to pay to the Plt the sum of £—, and it appearing that the Defts have set apart a sufficient sum to meet the annuity of £- in the statement of claim mentioned, This Court doth order that all further proceedings in this action be stayed, but without costs to either party.-See Rudd v. Rowe, V.-C. J., 30 June, 1870, B. 1936; 10 Eq. 610.

4. Stay of Proceedings on Terms.

UPON the application of the Deft &c.; And both parties by their solrs consenting to this order, and the Plt, by his solr, undertaking, after payment of his costs, hereinafter mentioned, to vacate the registration of the charge registered by him &c., and to enter up satisfaction of the judgment and execution in the action in the Q. B. Division, It is

ordered that upon the Deft paying to the Plt B. the sum of £- due to the Plt upon an agreement dated &c., and interest thereon at the rate of £p. c. per ann. from the day of, and also the costs of the Plt as mortgagee, to be taxed &c., all further proceedings in this action be stayed.-Beal v. Morris, V.-C. H. at Chambers, 24 March, 1879, A. 653.

NOTES.

Proceedings in an action may be stayed :

(a.) If the writ of summons has been issued without the authority or privity of the solr whose name is indorsed thereon, in which case no further proceedings shall be taken thereupon without leave of the Court or a Judge”: O. VII. 1.

(b.) If, in an action by partners in the name of a firm, the Plts or their solr fail to comply with a demand in writing by the Deft for a declaration in writing of the names and places of residence of all the persons constituting the firm-but, "when the names of the partners are so declared, the action shall proceed in the same manner and the same consequences in all respects shall follow as if they had been named as the Plts in the writ": Ib. r. 2.

(c.) If any question of law, which it would be convenient to have decided before any evidence is given, or any question or issue of fact is decided, has been directed to be raised for the opinion of the Court by special case, or in such other manner as the Court or a Judge may deem expedient, in which all such further proceedings as the decision of such question of law may render unnecessary, may thereupon be stayed": 0. XXXIV. 2; and see Dixon v. Rowe, 35 L. T. N.S. 548.

case "

The Court has jurisdiction to restrain a creditor whose debt is bonâ fide disputed from presenting a petition to wind up a solvent co. Cercle Restaurant Castiglione Co. v. Lavery, 18 Ch. D. 535.

An action for malicious prosecution is not necessarily frivolous and vexatious because the prosecution was by a trustee in bankruptcy brought by order of the Court: Mittens v. Foreman, 58 L. J. Q. B. 40.

For form of order, where repeated frivolous applications had been made, prohibiting any further applications without the leave of the Court, see Grepe v. Loam, Bulteel v. Grepe, 37 Ch. Div. 168, v. inf. Chap. XXIV.

An action may also upon summons at Chambers be stayed as frivolous, vexatious, and an abuse of the process of the Court: Dawkins v. Prince Edward of Saxe Weimar, 1 Q. B. D. 499; Edmunds v. A. G., 26 W. R. 550; 47 L. J. Ch. 345; Castro v. Murray, L. R. 10 Ex. 213; and see Lawrance v. Lord Norreys, 39 Ch. Div. 213; Willis v. Earl Beauchamp, 11 P. Div. 59; Macdougal v. Knight, 25 Q. B. Div. 1; Metropolitan Bank v. Pooley, 10 App. Cas. 210.

If the Plt's title to suc has, since judgment, been put an end to, e.g., in an admon action by revocation and fresh grant of admon, all further proceedings may be stayed on the application of the person who has acquired the title to sue: Houseman v. H., 1 Ch. D. 535.

Proceedings may also be stayed without costs where the Deft offers to comply with the P'it's demand, and would have done so if applied to before suit: Rudd v. Rowe, 10 Eq. 610, Form 3, sup.

If the Plt has been ordered to pay, or give security for costs, or to do any act, proceedings in his action may be stayed until compliance with such order, and in default the Deft may take proceedings to obtain an order to dismiss for want of prosecution.

Mere non-payment of costs of interlocutory proceedings by a Plt is not a ground for staying proceedings: Re Wickham, Marony v. Taylor, 35 Ch. Div. 272 (dissenting from Re Youngs, Doggett v. Revett, 31 Ch. D. 239, and Re Neal, Weston v. Neal, 31 Ch. D. 437); Morton v. Palmer, 9 Q. B. D. 89; secus, where payment of costs is vexatiously withheld and an application is made before trial: Re Wickham, sup. ; but where a Plt having failed in one action, brings another action for the same cause, the second action must be stayed until the costs in the first have been paid: McCabe v. Bank of Ireland, 14 App. Cas. 413; Martin v. Earl Beauchamp, 25 Ch. D. 12; Morton v. Palmer, sup.; though in the second action the Pit sues in a different character,

if substantially by virtue of the same alleged title: Martin v. Earl Beauchamp, sup. ; and see Peters v. Tilly, 11 P. D. 145; Denis v. Gorman, 4 L. R. Ir. 356; and where an action by a married woman by a next friend was dismissed for non-compliance with an order for security for costs, a second action by her by another next friend against same Defts, for same cause, was stayed until the costs of the first action were paid: Re Payne, Randle v. P., 23 Ch. Div. 288.

For case in which proceedings have been stayed pending security for damages, see Richards v. Howell, W. N. (83) 159, 168.

As to staying proceedings where concurrent actions are brought in this country and in a foreign country, on the ground “nemo bis verari,” &c., and that such proceedings cannot be regarded as vexatious where there is a better remedy in the foreign Court, see McHenry v. Lewis, 22 Ch. Div. 397; Peruvian Guano Co. v. Bockwoldt, 23 Ch. Div. 225; Hyman v. Helm, 24 Ch. Div. 531; Re Christiansberg, 10 P. D. 141; Thornton v. T., 11 P. D. 176; Mutrie v. Binney, 35 Ch. Div. 614.

The Court has jurisdiction, under sect. 85 of the Companies Act, 1862, to restrain quasi criminal proceedings against a co. by a common informer, for the recovery of penalties: Re Briton Medical Ass. Assoc., 32 Ch. D. 503.

A groundless action against official liquidators in their personal capacity was stayed: Graham v. Edge, 20 Q. B. Div. 683.

As to staying proceedings in action for recovery of land by next friend of non compos, where Court is of opinion that the action is not beneficial to the non compos, see Waterhouse v. Worsnop, 49 L. T. N.S. 140.

As to staying proceedings in action by exor before probate, see Tarn v. Commercial Bank of Sydney, 12 Q. B. D. 294, following Webb v. Adkins, 14 C. B. 401.

As to the jurisdiction to stay proceedings for administration in this country on it appearing that proceedings equally beneficial to infant Plt are pending in a Scotch Court, see Ewing v. Orr-Ewing, 9 App. Cas. 34.

As to staying proceedings under foreclosure judgment against will of Deft, see Blake v. Harvey, 29 Ch. Div. 827, and inf. Chap. XLVII. "MORTGAGES."

By O. LVIII. 16, an appeal is not to operate as a stay of proceedings under the decision appealed from except so far as the Court appealed from, or any Judge thereof, or the Court of Appeal, may order. As to stay of proceedings pending appeal, v. inf. Chap. XXXVI. "APPEALS."

As to transfer and consolidation of actions, v. inf. Chap. XXXIV.

SECTION III.-DISMISSAL FOR WANT OF PROSECUTION.

1. Order to dismiss for not delivering Statement of ClaimO. XXVII. 1.

UPON motion &c. by counsel for the Defts, who alleged that the Plt issued his writ of summons in this action against the Defts, and that the Plt being bound to deliver a statement of claim, the Defts duly appeared to the writ of summons in this action, and gave notice that they required a statement of claim, but that the Plt has not delivered any statement of claim within the time limited for that purpose, as by an affidavit of &c., filed &c., appears; and upon reading &c. [enter evidence, and if Plt does not appear, an affidavit of service of notice of the motion on him, or, and upon hearing counsel for the Plt], This Court doth order that the Plt's action do stand dismissed out of this Court for want of prosecution, with costs to be taxed &c. And it is ordered that the Plt A. do pay to the Defts B. &c. the amount of their said costs when taxed.