Crain v. Hilligross

Action by Hilligross against Crain on an account.

The defendant answered, amongst other things, in two paragraphs, by way of set-off. The cause was tried by the Court. After trial, and before the finding of the Court was announced, the defendant desired to dismiss his two paragraphs, setting up the set-off, but the Court refused to permit him to do so, and he excepted.

This ruling, we think, was erroneous. A plaintiff’ has a *211right, at any time before the jury retire, or, where the cause is tried by the Court, before the finding of the Court is announced, to dismiss the action without prejudice.…