Goomznsn v. sawrms. 11
greatly vexed and grieved  by.writs`of subpoena," and enacted that ‘
"surety be found to satisfy the party, so grieved and vexed, for his
damages and expenses, if so be that the matter cannot be made good
which is contained in the bill." Beames, Ch. Costs, 7. Owing to
the construction of the earlier statutes above mentioned, costs were
not taxable on dismissal except at 40 shillings, unless by special order
for further allowances in particular cases, until the statute of 4 Anne,
c. 16, § 23, (A. D. 1706,) "for preventing vexatious suits in courts of
equity, " which enacted "that upon the plaintiffs dismissing his own
v bill, or the defendant’s dismissing the same for want of prosecution,
the plaintiff in such suit shall pay to the defendant or defendants.
his or theirfull costs, to be taxed by a master." Beames, Ch. Costs,
85. This act not applying in terms to a dismissal at the hearing,
the plaintiffs, in order to evade the effect of this legislative provision,
adopted the plan of setting the case down for hearing on bill and
answer, and then having the bill dismissed with 40 shillings costs;
whereupon, on April 27, 1748, Lord ILIARDWICKE made a rule of court
which declares "that when any cause shall be brought to a hearing
on bill and answer, and such bill be dismissed, this court may and is
at liberty to direct and order such dismission to be either with 40
shillings costs, or with costs to be taxed by a master, or without costs,
as the court, upon the nature and merits of the case, shall think fit."
Beames, Ch. Costs, 86.
This author, in other places above referred to, shows conclusively
that everything was done, by legislation and by the practice of the
court, to give a defendant full costs when the plaintiff dismissed his
” ` bill; and this legislation was continued to the latest statutes long after
he wrote, as will be seen by reference to the other writers above cited.
Now I cannot think that upon an implication based on what I have
endeavored to show was a somewhat loose and untechnical use of two
words-"iinal hearing"-in hxing the amounts to be taxed as costs,
we are to repeal all this legislation which is a part of that law to
which section 983 of the Revised Statutes and equity rule 90 refer us
for the principles upon which we are to proceed "where by law costs
are recoverable in favor of the prevailing party." It is contrary to.
all the canons of construction to do this, and is merely sticking in
the bark of onesphrase used in the statute to the neglect of the rest
of it.
‘ A plaintiff, as will appear by the authorities cited, cannot dismiss
_ his bill without a hearing by the court, nor without its order. This is
Gspecially so when he asks to dismiss "without prejudice," as was
done in some of these cases. And,iwhile it is quite at matter of coursei
toqgrant the order, it is not absolutely so, and it will not be done
where theidefendant has acquired the right to object. Stevens v. The
Railroads, 4·FEDQ REP. 97; Booth v. Leycesler, 1 Keene, 247; SL C. 15
Eng. Ch. 247;·1 Daniell, Ch. Pr. 790. The passing of this order is
done ‘- on a “hearing," to all intents and purposes, and it is a "linal":