provision of the statute, as there now is (Burns 1908, § 8712), for acquiring liens against public property; hence the provisions of the contracts and bonds, as to saving the city harmless from liens, were of no consequence at that time, and the provision for the payment of all claims for labor and material used in such improvement could only be for the benefit of third persons, and not the city, and the contract and bond are dual in character and run to third persons. Etna, etc., Co. v. Indianapolis, etc., Co., 98 N. E. 706; Knight & Jillson Co. v. Castle, 172 Ind. 97, 87 N. E. 976, 27 L. R. A. (N. S.) 573, alleged that the material furnished by appel- and the bonds were executed, there was no lee was used in the construction of the work. The allegations in this particular are "that plaintiff, at said prices and upon said terms, for the purpose of being used in the erection, construction, and building of said storm districts, sold and delivered to said Fry & Co. at Greensburg, Indiana, at the prices and upon the terms named in said proposal, a large amount of sewer tile, a bill of particulars of which is filed herewith and made a part hereof, marked 'Exhibit H'; that said sewer tile was received f. o. b. cars at Greensburgh, Indiana, by said Fry & Co., and by them hauled to various parts of said city, and were distributed along the lines of and adjacent to said sewers so to be constructed, [4] The moral obligation would be suffiand for the purpose of being used in the con- cient, in connection with the statute, to raise struction thereof; that plaintiff does not the implication of such liability. This being know, and has no means of knowing, to what true, the contracts and bonds will be constorm districts, and in what quantities, it strued together, and the provisions of the was so hauled, but plaintiff avers that it statute will be read into such contracts and was so accepted and distributed by said Fry bonds, and the liability will be confined to & Co., and said Frank Lewark, the latter that contemplated by the law requiring it, one of the alleged members of the alleged and that the parties contract with reference copartnership of J. W. Fry & Co." The con- to that law. Burns 1908, § 1278; Herod v. tention of appellants is that the same rule in State, 15 Ind. App. 648, 43 N. E. 144, 44 N. E. regard to showing that the material or la- 378; United States v. Stephenson, 1 McLean, bor for which a lien is sought under the 462, Fed. Cas. No. 16,386; Carneal v. Day, mechanic's lien law obtains under this class Litt. Sel. Cas. (Ky.) 492; Robling v. Board, of contracts and bonds; that sureties are 141 Ind. 522, 525, 526, 40 N. E. 1079; the favorites of the law; and that their Faurote v. State, 123 Ind. 6, 23 N. E. 971; contract is not to be extended by construc- Faurote v. Faurote, 110 Ind. 463, 11 N. E. tion. The proceedings for the construction | 472; Holthouse v. State (App.) 97 N. E. 130, of the sewers were had under the cities and 132; Hart v. State, 120 Ind. 83, 21 N. E. towns act of 1905 (Acts 1905, p. 236; Burns 654, 24 N. E. 151; Graham v. Board, 66 Ind. 1908, 8639 et seq.). By section 8959 it is 386; State ex rel. v. Rowles, 98 N. E. 722; provided that, "upon the acceptance of any Opp v. Ten Eyck, 99 Ind. 345; Scudder v. such bid, the successful bidder shall enter Union Nat'l Bank, 91 U. S. 406, 23 L. Ed. into a contract for the faithful execution of such work, and shall give bond in an amount equal to fifty per cent. of the contract price of such work, with freehold sureties, two of whom shall be residents of the county in which such city or town is located, to the approval of said common council or board of trustees, to secure the performance of such contracts, and to hold such city or town harmless from the payment of any debt or damage by reason of the act of such contractor, and to secure the payment of all claims for labor and material used in such improvement, which bond shall be in lieu of any and all other bonds heretofore provided by any other law or laws of this state: Provided" etc. The bond required is therefore a statutory bond, and, in so far as within the statute, should receive a construction to effectuate its purpose. In such cases the provision of the statute itself furnishes a consideration for the conditions thereby imposed. Bildersee v. Aden, 62 Barb. (N. Y.) 175; Shirley v. Byrnes, 34 Tex. 625; Thompson v. Blanchard, 3 N. Y. 335: Sterner v. Palmer, 34 Pa. 131; Richards v. Morse, 36 Me. 241; Carpenter v. Mather, 4 Ill. (3 Scam.) 374. 245; Green v. Sarmiento, 3 Wash. C. C. 17, Fed. Cas. No. 5,760; Turpin v. Povall, 34 Va. 93: Crumlish v. Central, etc., Co., 38 W. Va. 390, 18 S. E. 456, 23 L. R. A. 120, 45 Am. St. Rep. 872. [5] The covenant for the payment for materials is independent of the covenant for the protection of the city. United States, etc., Co. v. American Co., 41 Ind. App. 620, 84 N. E. 555; United States, etc., Co. v. Omaha, etc., Co., 116 Fed. 145, 53 C. C. A. 465; School Dist. v. Livers, 147 Mo. 580, 49 S. W. 507. [6, 7] Whilst the bond required by the statute runs to those who furnish labor or material to a contractor, it has been repeatedly held that such bond does not run to a subcontractor. Faurote v. State, 119 Ind. 600, 21 N. E. 663; Faurote State, 111 Ind. 73, 11 N. E. 790; Faurote v. State, 110 Ind. 463, 11 N. E. 472; Miller v. State, 35 Ind. App. 379, 74 N. E. 260; Swindle v. State, 15 Ind. App. 415, 44 N. E 60. And that a bond complete and unambiguous on its face cannot be recovered upon for lack of something claimed to be omitted, without allegation or proof that it was omitted, where the [3] At the time this proceeding was had statute does not require the claimed omitted terms to be inserted. Ind. 83, 21 N. E. 654, 24 N. E. 151. [8] These holdings imply that the obligations of the sureties shall not be extended beyond their undertaking under the statute; but within that undertaking a liberal interpretation is indulged in favor of the materialman and laborer. Closson v. Billman, 161 Ind. 610, 69 N. E 449; United States, etc., Co. v. American, etc., Co., 41 Ind. App. 620, 84 N. E. 555; Buffalo, etc., Co. v. Cullen, etc., Co., 105 Mo. App. 484, 79 S. W. 1024. Hart v. State, 120 | of contract with the owner, although contract and agency are the basis for liability in the former class of cases. Totten, etc., Co. v. Muncie Co., supra; Scott v. Goldinghorst, supra; Ochs v. Carnahan Co., supra. The case of Faurote v. State, 123 Ind. 6, 23 N. E. 971, is in point on the question urged by appellants as to the insufficiency of the complaint. In that case a bill of particulars of sand and gravel, and in this a bill of particulars containing account of pipe delivered, conforming to the pipe speci. fied in the contract, was filed, and it was alleged that the materials were furnished for the construction of the road; and it was held that the allegations were sufficient to bind the sureties, and we regard the holding as correct. It could hardly be insisted that a materialman primarily would be bound to follow his material and see to it that it went into a structure for which it was contracted, and for which he delivered it upon the premises. If such were the rule, we apprehend that few would be disposed to make sales on credit. [9] This being true, sureties on such bonds must take notice of the default of their principals. Hohn v. Shideler, 164 Ind. 242, 72 N. E. 575; Town of Sullivan v. Cluggage, 21 Ind. App. 667, 52 N. E. 110. [10] Plaintiffs were not bound to antici; pate a defense. When a prima facie case was made by the complaint, under the allegation of receipt of the pipe and its distribution along the lines of and adjacent to the sewers to be constructed, and for the purpose of being used in the construction thereof, we think that a prima facie case of its use in the sewer is made; and if the failure to so use it was a defense it was the duty of appellants to overcome that prima facie case. Malott v. Sample, 164 Ind. 645, 648, 74 N. E 245; Cleveland, etc., Co. v. Gray, 148 Ind. 266, 272, 46 N. E. 675; Douthit v. Mohr, 116 Ind. 482, 18 N. E. 449; Byard v. Harkrider, 108 Ind. 376, 9 N. E. 294; Sears v. Wise, 52 App. Div. 118, 64 N. Y. Supp. 1063; McGarry v. Averill, 50 Kan. 365, 31 Pac. 1082, 34 Am. St. Rep. 120; Rice v. Hodge, 26 Kan. 164; Central, etc., Co. v. Braddock, 84 Ark. 560, 105 S. W. 583, 13 Ann. Cas. 11. [13, 14] The sureties have an equal opportunity to see that the material is so used, and their undertaking is an original one, the same as that of the principal, so that it is no hardship to hold them, because it is within their express agreement. It must also be kept in mind that the sureties undertake that the contractor shall perform the contract itself, and the city could have held them to do so. Supposing the contractor had abandoned the work after the delivery of the material, they would have been subrogated to his rights, and to the use of the pipe in completing the work; hence they should not be permitted to say that, because it was not alleged that the pipe was used in the work, the complaint is insufficient, because their agreement that he shall perform the work and pay for the material is a sufficient consideration to support an action for the contract price of the pipe contracted for and delivered for the purpose of carrying out the contract. A pertinent inquiry is, Whose pipe was it on delivery? To that inquiry we apprehend that there can be but one answer. It was the pipe of the contractor, and in equity, for the purpose of doing the work contracted, the sureties were subrogated to his rights, with an original promise to pay for the pipe. Some one was entitled to the benefit of the pipe. If the sureties failed to avail themselves of their rights, they should not be permitted to ob[12] Is the rule different where there is tain appellee's property without paying for no direct allegation of its use? A different it. If the work was abandoned, it will be rule may obtain between material furnished presumed that the city had the advantage to an owner and material furnished to a of it, and to that extent the sureties were contractor; in the latter case it being re- relieved of these obligations to the city. quired to be alleged and shown that the ma- Upon trial the evidence failed to show that terial was used where contracted for, where- the pipe was used in constructing the sewas, in case of purchase by the owner, it is ers. All of it was distributed along the not necessary to allege or prove its actual line of the work, and part of it was put in [11] The failure to pay for the pipe furnished was certainly the default of the principal, for which the sureties were liable. Ochs et al. v. Carnahan Co., 42 Ind. App. 157, 76 N. E. 788, 80 N. E. 163; Totten, etc., Co. v. Muncie, etc., Co., 148 Ind. 372, 47 N. E. 703; Scott v. Goldinghorst, 123 Ind. 268, 270, 24 N. E 333; Charnley v. Honig, 74 Wis. 163, 42 N. W. 220; United States v. National, etc., Co., 92 Fed. 549, 34 C. C. A. 526; City of St. Louis v. Von Phul, 133 Mo. 561, 34 S. W. 843, 54 Am. St. Rep. 695; Bell v. Kirkland, 102 Minn. 213, 113 N. W. 271, 13 L. R. A. (N. S.) 793, 120 Am. St. Rep. 621; Howes v. Reliance, etc., Co., 46 Minn. 44, 48 N. W. 448; Red Wing, etc., Co. v. Donnelly, 102 Minn. 192, 118 N. W. 1, 120 Am. St. Rep. 619. not appear, and it is insisted upon the evidence that there is a failure of proof. From what we have said in reference to the complaint, it will appear that it was not necessary that it be so shown. [15] It appears from the evidence that the principal, and all of the sureties appearing on the bond, save one, had signed and acknowledged the bonds and delivered them to the principal for delivery to the city; that when the bonds were presented the mayor refused to accept them, because there was no principal or surety on the bonds residing in Decatur county, the statute, as we have shown, requiring that there should be two freehold sureties resident in the county in which the city is located, and the mayor refused to accept them without local surety. The principal took the bonds, procured them to be signed by a resident of the county, took them back to the mayor, who inserted the name of the resident signer in the body of the bonds, and then accepted and approved them and signed the contracts. The principal did not notify any of the former signers, as sureties, of the fact of procuring a resident surety, but did tell two of them he would have to obtain a local surety, and told all of them the character and amount of the work. In the first place, the sureties were bound to know that a local surety was necessary, under the law, in such contracts and bonds. In the second place, the rule of releasing sureties by the addition of another name ordinarily applies to instruments after execution-that is, after delivery to and acceptance by the payee or obligee-and it is manifest that there had been no execution prior to the addition of the signature of the local surety; on the contrary, the evidence is explicit that there was no delivery, no execution, and that the bonds were expressly refused on that account, and the general rule is that it is the alteration after execution which vitiates a written instrument; but the point is not involved here, as there is no question of alleged change after the execution of the bonds. [16] It is also the law that the alteration of an ordinary written instrument after signing by some, and before signing by others, so as to change its terms, with knowledge of the payee or obligee, express or implied, will discharge the party not assenting, when the contract is perfected; that is, without additional requirements to effectuate it. Palmer v. Poor, 121 Ind. 135, 22 N. E. 984, 6 L. R. A. 469; Hert v. Oehler, 80 Ind. 83; Coburn v. Webb, 56 Ind. 96, 26 Am. Rep. 15; Schnewind v. Hacket, 54 Ind. 248; Good Roads, etc., Co. v. Moore, 25 Ind. App. 479, 58 N. E. 540; Moore v. Hinshaw, 23 Ind. App. 267, 55 N. E. 236, 77 Am. St. Rep. 434. [17, 18] In this case the instruments were not changed in any of their terms before delivery; and an additional name was inserted in the body of the bond, and an additional signature was attached. As the law required a local surety, the signers were bound to know it. They therefore must be held to have authorized, impliedly at least, the principal to secure such local surety; that is, to do what was essential to comply with the law and make a valid bond. This is true even as to promissory notes. Robling v. Board, 141 Ind. 525, 40 N. E. 1079; Faurote v. State, 110 Ind. 463, 11 N. E. 472; Bank v. Neal, 22 How. 96, 16 L. Ed. 323. Conversely, they would not be bound by the insertion in the bond of terms which the statute did not import, or terms not essential to make the bonds comply with the statute, irrespective of the addition of a name; but alterations which do not change the legal effect of a written instrument do not affect liability upon them. Osborn v. Hall, 160 Ind. 153, 66 N. E. 457; Foote v. Bragg, 5 Blackf. 363; 2 Am. & Eng. Encyc. 222, and cases there collected. There is stronger reason for the rule in the case of statutory bonds, because the statute itself enters into the contract, and because it will be presumed in signing the bond that the purpose was to effectuate it, and to that end that whatsoever is necessary to do so within the statutory requirements is impliedly authorized by the signers; and as the original agreement and undertaking of all to execute an effective and sufficient bond as it left each of the signers, until its acceptance its execution was in fileri; it could not have been legally understood otherwise than as in making. Osborn v. Hall, 160 Ind. 153, 158, 159, 66 N. E. 457; Robling v. Board, supra; Bowser v. Rendell, 31 Ind. 128, 132; State v. Pepper, 31 Ind. 76; Basey v. McKinney, 43 Ind. App. 422, 87 N. E. 693; Keith v. Goodwin, 31 Vt. 268, 274, 73 Am. Dec. 345; Governor v. Lagow, 43 Ill. 134, 138; Sampson v. Barnard, 98 Mass. 359; Ward v. Hackett, 30 Minn. 150, 14 N. W. 578, 44 Am. Rep. 187; Graham v. Rush, 73 Iowa, 451, 35 N. W. 518; Edwards v. Mattingly, 107 Ky. 332, 53 S. W. 1032; Bray v. Hagan, 110 Ky. 566, 62 S. W. 1, 96 Am. St. Rep. 464. [19] It was not essential that the additional name be inserted in the body of the bond; hence that fact is immaterial. Griffin v. Wallace, 66 Ind. 410; Potter v. State, 23 Ind. 550; Danker v. Atwood, 119 Mass. 146. The addition of the signature on the bond was a statutory compliance of which appellants were bound to take notice, and which they presumptively authorized. There is some conflict in the evidence as to whether James Fry and Frank Lewark were copartners in the contracts and bonds sued on. Neither of them is here as appellant, or joining in the appeal as a term appeal, so that that question is immaterial. The sureties make no claim that they signed the bonds with any understanding that they were or were not copartners. On the face of the contracts and bonds they appear to have been partners, and there was some evidence to support that theory, so far as appellants' rights are concerned. The judgment is affirmed. 6. PLEADING (§ 104*)-PLEAS TO JURISDICTION-REQUISITES. court is a dilatory plea which is disfavored, and An answer denying the jurisdiction of the must be definite and certain, and must anticipate and exclude all such supposable facts as would, if alleged on the opposite side, defeat the plea. [Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 213-217; Dec. Dig. § 104.*] MOORE-MANSFIELD CONST. CO. v. MA-7. VENUE (§ 22*)-JOINDER OF SEVERAL DE RION, BLUFFTON & EASTERN TRACTION CO. et al. FENDANTS. Burns' Ann. St. 1908, § 315, which authorizes suit against two or more persons, jointly liable, in the county where either resides, does (Appellate Court of Indiana, Division No. 2. not authorize plaintiff, who has a cause of ac March 4, 1913.) 1. DISMISSAL AND NONSUIT (§ 5*)-RIGHT TO DISMISS-COMMON-LAW RULE. Under the common-law practice, a plaintiff, in an action of law, could dismiss at any time before verdict; but a dismissal was not allowed in equity, where defendant would be injured or the dismissal would be inequitable. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 6-12; Dec. Dig. § 5.*] 2. DISMISSAL AND NONSUIT (§ 5*)-RIGHT TO DISMISS-NATURE OF ACTIONS. Under Burns' Ann. St. 1908, § 249, abolishing distinctions in pleading and practice between actions at law and suits in equity, the right, under section 338, to dismiss an action without prejudice before the jury retires, or when the trial is by the court at any time before finding is announced, extends to equity cases as well as actions at law. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 6-12; Dec. Dig. § 5.*] 3. DISMISSAL and NonsuIT (§ 6*)—RIGHT TO DISMISS. Under Burns' Ann. St. 1908, § 338, providing that an action may be dismissed without prejudice by plaintiff, in cases tried to the court, at any time before the court's finding is announced, plaintiff was entitled to dismiss, though a master commissioner had prepared his report and had furnished counsel copies thereof; it not having been filed, and not being the finding of the court. [Ed. Note. For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 13, 14; Dec. Dig. § 6.*] 4. DISMISSAL and NonsUIT (§ 42*)-ERRONEOUS DISMISSAL-EFFECT. If the trial court, to whom a motion is made by plaintiff for a voluntary dismissal without prejudice, has jurisdiction of the motion, an order of dismissal is not ineffective, though erroneous. tion against a nonresident of the county, to join him as a codefendant with residents against whom he has no cause of action, and such joinder does not confer jurisdiction as against the nonresident. [Ed. Note. For other cases, see Venue, Cent. Dig. §§ 35-37; Dec. Dig. § 22.*] 8. PLEADING (§ 214*)—ADMISSION BY DEMUR RER. The averments of an answer must be taken as true on demurrer thereto. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*] 9. ABATEMENT AND REVIVAL (§ 84*)—WAIV ER OF GROUNDS OF ABATEMENT. in bar; and, where matter in abatement is A plea in abatement must precede a plea joined in the same paragraph with matter in bar, the matter in abatement is waived and may be stricken on motion. [Ed. Note.-For other cases, see Abatement Dec. Dig. § 84.*] and Revival, Cent. Dig. §§ 155, 176, 507-510; Appeal from Circuit Court, Huntington County; S. E. Cook, Judge. Action by the Moore-Mansfield Construction Company against the Marion, Bluffton & Eastern Traction Company and others. Judgment for defendants, and plaintiff appeals. Reversed, with directions. Wm. A. Ketcham, of Indianapolis, and Lesh & Lesh, of Huntington, for appellant. Abram Simmons and Frank C. Dailey, both of Bluffton, for appellees. LAIRY, J. The appellant filed its complaint in the Huntington circuit court, by which it sought to recover from appellees a large sum of money alleged to be due it on various claims arising out of the construction of an electric interurban railway. [Ed. Note.-For other cases, see Dismissal Each of appellees filed separate answers in and Nonsuit, Cent. Dig. 88 75-83; Dec. Dig. abatement, to which separate demurrers by § 42.*] appellant were addressed and overruled. The 5. DISMISSAL AND NONSUIT (§ 42*)-VOLUN-issues were closed by a reply in general deTARY DISMISSAL-EFFECT ON SET-OFF. nial to each paragraph of the answer in abatement. A trial resulted in a judgment in favor of appellees on such answers. A set-off pleaded in an answer is not affected by a voluntary dismissal of the cause of action stated in plaintiff's complaint, defendants being entitled to proceed to final judgment on the issues tendered by the set-off, and to The answer in abatement by the Bluffton recover thereon any amount shown to be & Marion Construction Company is in two due from plaintiff under the issues so formed; paragraphs, the first of which is similar, in but the court would not have the right, in its essential averments, to the one paragraph determining such issues, to consider any issues formed upon the complaint. [Ed. Note.-For other cases, see Dismissal and Nonsuit, Cent. Dig. §§ 75-83; Dec. Dig. § 42.*] of answer filed by the other appellee. Each of these paragraphs appear to the court to state facts sufficient to constitute a cause for the abatement of the action; and, as ap pellant has not called our attention to any specific defect, they will be deemed sufficient to withstand a demurrer. time and under the circumstances disclosed by the record introduced in evidence. The evidence shows that issues were formed in the former action by the defendant's filing an answer in eight paragraphs, the first of which was a general denial, and the last of which was a set-off, and by a general denial to the affirmative paragraphs of answer and to the set-off. The case was then referred to a master commissioner to take testimony and report his findings to the court. At the time this reference was made, the court and the attorneys were treating the case as one for foreclosure of a subcontractor's lien. After the court had made the order dismissing plaintiff's cause of action, as stated in its complaint, the commissioner, to whom the case had been referred, filed his report with the court finding upon all of the issues made by the pleadings. The plaintiff unsuccessfully objected to the filing of this report, and afterward moved to strike it from the files, which objection was overruled. Afterward the plaintiff filed exceptions to the report of the master commissioner; and, so far as the evidence in this case shows, the exceptions so filed were pending at the time the answers in abatement were filed in this case. It is claimed on behalf of appellant that the evidence is not sufficient to sustain these paragraphs, and that the result of this appeal depends upon a decision of the question thus presented. This question must be determined from a consideration of the evidence in connection with the answers in support of which it was admitted. These answers aver, in substance, that, prior to the commencement of this action, appellant brought an action in the circuit court of Huntington county, Ind., against the two appellees in this action, alleging the same cause of action against them as is set out in the complaint filed in this case. It is further alleged that the parties to the action previously filed are the same as the parties to this action, and that the same is still pending in said court and is undetermined. The evidence adduced at the trial consisted entirely of records and documents, being the pleadings and other papers filed in the former case, and the order book entries made therein. It seems to be conceded by appellant that the complaint filed in the action referred to in appellees' answers in abatement states the same cause of action stated by the [1, 2] We will first consider the right of complaint in the case at bar; the only differ- plaintiff to dismiss the cause of action stated ence being that the complaint in the former in the complaint. Under the common-law action stated facts upon which a mechanic's practice, a plaintiff, in an action at law, lien was asserted, and that it asked a fore had a right to dismiss his action at any time closure of such lien. It is also conceded by before verdict; but in a suit in equity the appellant that, since the decision of the Su- complainant did not possess a similar right, preme Court of this state in the case of the privilege being granted or withheld by Indianapolis, etc., Co. v. Brennan et al., 174 the chancellor. A dismissal was allowed in Ind. 1, 87 N. E. 215, 90 N. E. 65, 68, 91 N. E. cases where it would work no hardship or 503, 30 L. R. A. (N. S.) 85, the complaint injustice to the defendant; but the right in question does not state facts sufficient was denied where, in the opinion of the to show a lien in favor of appellant, or to chancellor, the defendant would be injured entitle it to a foreclosure; that it states by the termination of the suit, or where the only a cause of action for damages for breach dismissal would be inequitable. This rule of contract, work, and labor done and mate- still seems to prevail in states where the rials furnished; and that, so considered, the common-law pleading and practice are adissues tendered by the complaint in the ac-hered to, and where it has not been changed tion previously filed are identical with those by statute. Electrical, etc., Co. v. Brush, etc., tendered by the complaint in this action. The evidence also shows that the plaintiff in the former action, on the 30th day of August, 1909, dismissed his action against the defendants in vacation, and that at the next term the court, over the objections of the defendants, entered a judgment dismissing plaintiff's cause of action, as set out in its complaint without prejudice, and awarding to defendants their costs. It thus appears that the issues joined upon the complaint and the answers thereto were withdrawn from the consideration of the court before the commencement of this action, and that no cause of action, based on the issue pre sented by the complaint, was pending at the time this action was commenced. Appellee states that appellant had no right to dismiss his complaint, as he did, at the Co. (C. C.) 44 Fed. 602; Chicago, etc., R. Co. v. Union Rolling Mill Co., 109 U. S. 713, 3 Sup. Ct. 594, 27 L. Ed. 1081; Watt v. Crawford, 11 Paige (N. Y.) 470. In jurisdictions where the common law prevails, it has been held that no dismissal will be allowed in equity after an order of reference has been made. Pullman Car Co. v. Central Transp. Co. (C. C.) 49 Fed. 261; Briscoe v. Brett, 2 Ves. & B. 377; Wyatt v. Sweet, 48 Mich. 539, 12 N. W. 692, 13 N. W. 525. By an application of this rule, and on the authorities cited in its support, appellees insist that the plaintiff in the former action had no right to dismiss the cause of action stated in the complaint, and that for this reason we must regard it as still pending. This position cannot be maintained. Under the provisions of our Code, there is no dis |