A right which can be exercised only by permission, is no right at all; and all the cases show that a discontinuance must be founded on the express or implied leave of the court. In England this leave is 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on motion, in the first instance; and here it is taken without the formality of an application, but subject to be withdrawn on cause shown for it: that is the whole difference. The act, when the propriety of it is contested, must, in the one shape or in the other, have the sanction of the court. Are the circumstances of this case, then, such as to demand our interference? Messrs Wager and Macalester are sureties, and consequently entitled to require that the suit be prosecuted to a conclusion, not only to put them out of suspense, but to give them the ulterior benefit of the judgment as a security. Had the plaintiffs not brought suit, they would have had a right to say, “ begin;” but, having begun, they have perhaps a greater right to say “ go on;” for it would be a fraud on them to put their vigilance asleep by the institution of an action, subsequently withdrawn, which would cause them to lose just so much time. The plaintiff admits that the sureties are discharged in equity, not only by the discontinuance, but by the existence of a fund within their reach in the hands of the principal’s assignees; and why not give up the evidence of the debt ? The sureties have a right to be discharged not only in equity but at law. The plaintiff is therefore bound either to enter a retraodt, which would make an end of their legal liability, or proceed to judgment in order to have the money which awaits the sureties’ order in the hands of the assignees, paid into court and satisfaction entered. These are considerations which compel us to say he must proceed.
Rules discharged and discontinuance set aside.