
    Isaac Pollock against John Hall. Same against Same.
    S. C. 4. Dall. 222.
    Discontinuances are the acts of the court and subject to their discretion. They will not be allowed, after a cause has been referred, and the evidence heard by the referees.
    This was a report of referees, finding for the defendant the sum of 2300 dollars, signed on the 9th May 1800.
    It appeared that the referees had met several times on the business of deciding the matters in controversy, and had heard the parties, allegations and proofs. They at length determined that a quantity of Irish linens was properly chargeable to the plaintiff, who being dissatisfied therewith, consulted his counsel, and by his advice, on the 21st April, discontinued his suit in the prothonotary’s office and paid off the costs. He afterwards attended before the referees, until the making of their report, but with a protestation that this should not affect his discontinuances, if he was entitled thereto.
    These discontinuances were made one of the grounds of exceptions to the report, on the part of the plaintiff.
    Messrs. W. Tilghman and Morgan for the defendant,
    objected thereto, and cited Oxley and Hancock v. Olden, x Dal. 430. One cannot annul a reference, after the referees have investigated the whole transaction, and agreed on their report, without any imputation of misconduct. A plaintiff must move for a *43] *discontinuance, after joinder in demurrer. 1 Crompt. Pract. 118. There can be no discontinuance without payment of costs. Ib. 119. After verdict on a writ of inquiry, there can be no discontinuance, without the defendant’s consent. Carth. 87. A discontinuance will not be allowed after a special verdict, in order to introduce fresh proof in contradiction to the verdict. 2 Bl. Rep. 815. It is in the discretion of the court, whether they will permit a discontinuance on a special verdict; they will refuse it in a hard. action. Annal. 201. Plaintiff cannot discontinue without leave after demurrer joined and entered, or after verdict on a writ of inquiry. Sherid. Pract. 535- Style Pra. Reg. 198, 199, (old ed. 161.) There can be no discontinuance without leave, after issue joined. Gilb. C. B. 219. An avowant in replevin cannot have leave to discontinue. 1 Crompt. Pract. 119. 1 Stra. 112. Nor can there be any discontinuance after judgment for the avowant in replevin, on demurrer. 1 Crompt. Pract. 119. 1 Barnes 111. Miller w. Hutchinson.
    All these cases prove, that discontinuances are under the power and control of the court, and considered as their acts; whereas nonsuits are the mere acts of the plaintiffs. Jury trials differ materially from references under our defalcation act of 1705. 1 Dali. St. Laws 65. In the former, there may be sur-prize by unexpected evidence, and the verdicts are generally unknown until they are openly delivered. It is otherwise on references in most instances. There may therefore be a degree .of policy in allowing a plaintiff to take a nonsuit on a trial by jury, but none in suffering him to enter a discontinuance at his mere will, where judges of his own choosing have found against him. It puts the parties on a footing wholly unequal; the defendant is bound by the report, while the plaintiff exercises his election. But both parties are actors on a reference, and a sum of money may be found due by a plaintiff, to which he will not readily submit, if he is allowed the option of a discontinuance. The words of the defalcation act that“ the award or report of “ referees made according to the submission of the parties, and “ approved of by the court, and entered on the record or roll, “ shall have the same effect, and shall be deemed and taken to “be as available in law, as a verdict given by twelve men,” do not prove, that as a plaintiff may in common instances refuse taking a verdict and become nonsuit, he may also after a full hearing by referees, discontinue his action. Where a defendant is an actor, as in replevin, a plaintiff by our practice cannot without special permission, strike off his suit. If the present motion prevails, it will be utterly subversive of the utility of References, and put an end to them. The legislature never could have contemplated such a power of discontinuance, [*44 reserved to the plaintiff, on references, when they passed the defalcation act.
    Messrs. Dallas and Bickley for the plaintiff.
    The English practice varies in many particulars from our own. There a party is not held to bail on civil process without a previous affidavit filed, and many other instances may be put to evince a difference. But cases are not wanting in England to shew, that discontinuances are generally matters of course on payment of costs, being made on side bar motions. In Hook, adm’r v. Haywood, i Barnes 112, the practice on this subject was variously reported ; but in Heber v. Bishop, lb. 111, it is said, that a plaintiff may discontinue at any time. It is indeed laid down in some books, that there can be no discontinuance after a demurrer argued : (Cro. Jac. 8, 35) nor after a general verdict, though it may be after a special verdict. 1 Salk. 178. Gilb. C. B. 122. But leave has been given to discontinue, after judgment delivered for a defendant on demurrer. 1 Lil. Ab. 644. 1 Saund. 23, 39. 1 Lev. 227, 298. After demurrer on an arbitration pleaded, it is not usual to discontinue the action, but to argue the demurrer to try the validity of the arbitration so pleaded, to avoid delay. 1 Lil. Ab. 644. In the more modern books it is said, that a plaintiff may discontinue on a side bar motion, on payment of costs, either before or after declaration. Sherid. Prac. 534-5. Discontinuances are side bar rules. 6 Term Rep. 61-6. An attachment will not lie against a plaintiff for costs on a discontinuance. 7 Term Rep. 6.
    Our own practice must however govern on this head, being accommodated by long experience, to our local situation. A slight review of the records of this court will suffice to shew, that plaintiffs have always been allowed to discontinue, either before or after issue joined, after a special verdict, and even after a reference entered into. We have never heard of an application made to the court for leave to discontinue. Less than half an hour’s search has enabled us to lay before the court the following cases from their dockets.
    
      *45] Lloyd's lessee v. Taylor. September term 1764. Rule foi trial by proviso. Discontinued. — Finn's lessee v. Schillenberger. September term 1765. Rule for trial. Discontinued. — Chew v. Jones. September term 1767. Rule for trial. Discontinued. —Neave v. Forbes. September term 1771. Rule for trial by proviso. Discontinued. — September term 1767. Foulke’s lessee v. Rennix. Sur reference. Discontinued. — September term 1773. Leach’s lessee v. Armitage. Special verdict found *45] 21st April 1775, and *discontinued by Mr. Read attorney pro qiier. Next day. — December term 1797. Pringle v. Vaughan. Judgment for the plaintiff on 3d September 1798.— Mr. Lewis for the plaintiff, on 14th August 1800, opens the judgment and discontinues the suit. — September term 1798. Davis v. Portious. Referred 13th March 1799. Discontinued 13th August 1800.
    . We have also been furnished with another case, on which we greatly rely. It is in point, and stronger than that now before the court. James Starret brought partition of certain lands in Cumberland county against James Chambers and others. When the cause was at issue, it was referred at Nisi Prius at Carlisle on the 18th May 1768, to five persons, or any three of them, who were to report to the next September term. The referees met accordingly, heard the proofs of the parties, and made a report, finding that the plaintiff had no cause of action, which was returned into the prothonotary’s office on the 21st September 1768. On the 24th of the same month, the plaintiff came into the prothonotary’s office before the sitting of the court, and discontinued his action. Messrs. Chew, Galloway and Dickinson were of counsel with the defendants, but made no exceptions to this act of-the plaintiff’s ; and it will be admitted, that their silence on this occasion, is strong evidence of their sense of the practice. Afterwards the same Starret instituted an ejeptment for his proportion of the same lands, which came on to trial at Nisi Prius on the nth June 1774, at Carlisle, before Chew, C. J. and Moretón, J., and a verdict passed for the defendants. We are authorized to say, that on this trial, the former report and discontinuance between the parties, having been spoken of, the then Chief Justice justified the propriety of the former discontinuance ; and it must be presumed, that this was the result of reflection.
    Our defalcation act puts reports of referees on the precise footing of verdicts. On the plea of payment, the jury may certify a sum due to the defendant. He is equally an actor on a jury trial, as on a reference, and yet it has never been known that the plaintiff was denied the liberty of suffering a nonsuit, which is substantially a discontinuance. So in replevin, in England, where both parties are acknowledged actors, the plaintiff may become nonsuit. 1 Cromp. Pract. 263. And in a late re-plevin of Murgatroyd v. M'Clure, in the Circuit Court of the United States for the district of Pennsylvania, where the court’s opinion was in favour of the defendant, they held, that though the plaintiff could not discontinue without the leave of the court, he was not obliged to take the verdict, but might become non-suit. The reason of the laws suffering a nonsuit of the plaintiff *is grounded on possible‘surprize, and to prevent his right ^ , being concluded. Parties before referees surely are not [*46 always exempted from surprize.
    Cited in i Ravvle 346 lo show that a rule to discontinue will not be granted if it be intended to oppress the defendant by another suit.
    
      Curia advisare vult.
    
   Shippen, C. J.

two days afterwards delivered the opinion of the court. The question agitated is of great magnitude, as it concerns the practice of the courts of this state. The method of settling suits by reference, has been experienced to be highly beneficial, and we should reluctantly throw any obstacles in the way, which might affect this mode of trial.

The difficulty in our minds has been created by the case of Starret v. Chambers et al. There the discontinuance passed sub silentio, without argument. But it is confidently said, that Chew, C. J. afterwards recognized the practice on a subsequent trial, between the same parties. If it even be the fact, we are possessed of such information on the subject, as thoroughly satisfies us, the opinion was suddenly given and was not the effect of reflection. We possess every respect for his opinion, and know his present sentiments.

In many instances, discontinuances in England are mere side bar motions, but are always subject to the discretion of the court. So is the rule laid down in Anna! 201, cited at the bar. They are the acts of the court.

It cannot seriously be supposed, that it was intended by the defalcation act, that when parties had submitted their disputes to judges of their own choice, either should be at liberty to recede from their determination, after the matters in controversy had been fully examined, and the referees had made up, or were about to make up, their minds on the subject. If such a construction was established, it would be unreasonable to expect that defendants would readily agree to submit their causes to such a tribunal. This is the true spirit of the resolution in Oxley and Hancock v. Olden, cited from 1 Dall. 430. We cannot on the fullest consideration, think, that the solitary case of Starret v. Chambers et al. is binding on us as an authority; and therefore overruled the exception of the discontinuance which has been taken to this report.

The consideration of the report as to the other exceptions founded on the merits, was adjourned.  