Mutual Safety Insurance v. Roberts

4 Sarat. Ch. Sent. 592

Opinion

The Vice-Chancellor,

said the cause was out of court on the complainants dismissing their bill. It was regularly on the calendar for hearing, but having been dismissed, it should be stricken off, without costs.

The second notice of hearing was irregular, but was not such a proceeding as the court will set aside on motion.

The dismissal of the suit does not prevent consequential proceedings, a variety of which may be necessary, such as for leave to sue a bond, for retaxation of costs, and the like. For such purposes, the suit will be deemed before the court.

The dismissal of an injunction bill, after answer, is prima facie evidence that the complainant was not equitably entitled to an injunction. The defendant must therefore have a reference to a master, to ascertain his damages by reason of the injunction. All questions thereon, and as to the costs of the motion, will be reserved till the coming in of the master’s report.