Consolidated National Bank v. McManus
Supreme Court of Pennsylvania
Appeal, No. 323, Jan. T., 1906, by defendant, from order of C. P. No. 1, Phila. Co., March T., 1903, No. 978, dismissing application to strike off discontinuance in case of Consolidated National Bank v. Michael Mc-Manus. Assumpsit on promissory notes. Petition to strike off discontinuance. The petition alleged that the defendant was entitled to set off against the notes a sum largely in excess of their aggregate amount. Error assigned, was the order dismissing the petition.
1Opinion of the Court
Per Curiam,
A discontinuance in strict law must be by leave of the court, but it is the universal practice in Pennnsylvania to assume such leave in the first instance. This was stated to be the established practice as long ago as 1843, in Schuylkill Bank v. Macalester, 6 W. & S. 147, where it is said per curiam “ all the cases show that a discontinuance must be founded on the express or implied leave of the court. In England this leave *192is obtained on motion in the first instance, and here it is taken without the formality of an application, but subject to be withdrawn on cause shown for it;…
2Cases cited3 opinions
- Gilmore v. ReedSupreme Court of Pennsylvania · 1875
- M'Credy v. FeySupreme Court of Pennsylvania · 1838
- Schuylkill Bank v. MacalesterSupreme Court of Pennsylvania · 1843
3Cited by29 opinions
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- Beaver v. SlaneSupreme Court of Pennsylvania · 1921
- Sale v. Ambler (Emmett)Supreme Court of Pennsylvania · 1939
- Pohl v. NGK Metals Corp.Superior Court of Pennsylvania · 2007
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