
    The Mutual Safety Insurance Company v. Roberts.
    June 2, 1847.
    The voluntary dismissal after answer, of an injunction bill, shows presumptively, that the complainant was not equitably entitled to the injunction, and entitles the defendant to a reference to ascertain his damages, where the usual bond has been given.
    After such dismissal, the cause will be stricken from the calendar, but motions may still be made in the suit.
    A notice is not such a proceeding as will be set aside on motion, although irregular.
    The complainants, on filing the bill and executing the usual bond, obtained and served an injunction. On the answer coming in, they stipulated to dissolve the injunction. On the 10th of May, 1847, the defendant noticed the cause for hearing on bill and answer; after which, on the same day, the complainants entered an order dismissing their bill on payment of costs. On the 14th of May, the defendant served a notice, that on the 18th, he would move the cause on the calendar, and, at the same time, would move for the payment of his damages, by reason of the injunction.
    The complainants then moved to strike the cause from the calendar, and asked to set aside also the notices served by the defendant.
    
      T. Sedgwick, for the complainant.
    
      B. F. Butler, for the defendant.
   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.  