4 U.S. 222 (1800)
U.S. Supreme Court
Supreme Court of Pennsylvania. December Term, 1800
THESE causes were referred, on the 22d of January 1800, by agreement of the parties, and several meetings were held by the referees, at which the parties exhibited their respective proofs, and were heard by themselves or their agents. The plaintiff conceiving, however, that he had more evidence, which might be produced at a future period, or conjecturing, that the referees were unfavourable to his claims, ordered the actions to be discontinued, on the 21st of April 1800, and gave notice of the discontinuance to the defendant. But the referees proceeded to decide upon the matters referred; and, on the 10th of May 1800, filed a report, finding for the defendant the sum of 2,300 dollars. To this report exceptions were exhibited, alleging, among other objections to a confirmation, that the actions were discontinued. It became, therefore, a leading question, whether, under the circumstances stated, the plaintiff had a right to discontinue?
Dallas argued in the affirmative: 1st. That a plaintiff has a right to discontinue his action, at any time before the merits are judicially decided. It is true, that the English authorities say it must be done by leave of the Court; but before, or after, declaration filed; after demurrer joined and entered; after verdict on a writ of inquiry; and even after a special verdict; the leave of the Court is granted as matter of course. Sherd. Pr. 534, 5. Barn. 170. 6 T. Rep. 616. Cro. J. 35. 1 Salk. 178. Gilb. 272. 7 T. Rep. 6. Barn. 169. Carth. 87. 2d. That the case of a trial by jury, and the case of a reference, do not, in this respect, differ. The act of assembly places a report of referees on the same footing as a verdict; and does not affect, in any manner, the power of the plaintiff over his suit. 3d. That the practice of Pennsylvania, both on general principles, and under the statute, has been uniform, in favour of the plaintiff’s right. A discontinuance, indeed, no more requires the act of the Court, than a non pros, when the plaintiff prevents a verdict, though he could not prevent a trial. The records of the Court will establish the right of discontinuance, before and after issue joined, by the mere act of the plaintiff: Lloyd’s Lessee v. Taylor. Sept. T. 1764.
Plym’sLessee v. Skillenbergen. Sept. T. 1765. Chew v. Jones. Sept. T. 1767. Kerston v. Yeager. Sept. T. 1766. Neave v. Forbes. Sept. T. 1771. So after reference. Davis v. Porteer. Sept. T. 1798. Foulk’s Lessee v. Rennicks. Sept. T. 1767. So after judgment, plaintiff may open the judgment, and discontinue. Pringle v. Vaughan. Dec. T. 1797. So after special verdict. Leech’s Lessee v. Armitage. Sept. T. 1773.1 So even after a report of referees actually filed. Sterret v. Chambers et al. Sept. T. 1757.2 W. Tilghman and Morgan argued against the right to discontinue. 1st. That, on general practice, there could be no discontinuance, without leave of the Court, which would only be granted on payment of costs. 2d. That after a jury was sworn, the plaintiff could not discontinue, though he might suffer a non pros, which had consequences differing from those of a discontinuance. 3d. That the statute reference was of a peculiar character; which implied the agreement of the parties to receive the report of the referees; and which, by the operation of a set-off, frequently converted the defendant into the real plaintiff, with the remedy of a scire facias. In the course of the argument they cited Styles, 198, 199. Cas. Temp. Hard. 200. Gilb. C. P. 219. Crom. Pr. 119. Carth. 87. 2 Bl. Rep. 815. 1 Dall. Rep. 430. 143. 355. 514.
By the COURT: The case of Sterret v. Chambers et al. induced us to pause, before we decided the point now submitted to our consideration. It does not appear, however, that the right to discontinue was at all contested in that case; and the other cases, cited from our records, do not import any judicial decision, that would be binding upon us, as authority, on the present occasion. In this situation, we think we are at liberty to deny the right for which the plaintiff contends; and that the policy of the legislature, [4 U.S. 222, 224]