— The ease 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, *as well r*224 as the principles of justice, will sanction the denial. The act of as- *- sembly sought to compose strifes, to shorten litigation, by assigning an amicable tribunal, to which the parties might voluntarily resort: and when both have agreed to resort to that tribunal, it would be inconsistent with the general nature of an agreement, to permit one of them alone to withdraw from its jurisdiction. Feuds would be inflamed, instead of being allayed ; and suits multiplied, instead of being diminished, by such a construction of the law. There may be cases, however, in which a plaintiff, alleging surprise or mistake, would be allowed by the court to discontinue his suit: but after an agreement to refer, a disclosure and hearing before the referees, and an opinion expressed or intimated by them, upon the merits, a discontinuance cannot be regarded as a matter of right, and would only be permitted upon very cogent reasons, such, perhaps, as would invalidate the report itself. (a) In the present case, we are of opinion, that the plaintiff had not a right to discontinue the suits; and that no sufficient reason appears, for allowing a discontinuance upon the authority of the court.
On the discussion of other exceptions to the report (one of which was, that a single report was made, though two suits were referred), it was agreed to consolidate the actions, and to refer the disputed points again to the same referees.
Though the plaintiff’s right to discontinue is, generally, a matter of course, it is subject to' restrictions. An action cannot he discontinued, after the jurisdiction of arbitrators has attached; which is considered as attaching from the moment of their appointment, and the cause is then out of court. Horn v. Roberts, 1 Ash. 45, So, a plaintiff will not be permitted to discontinue, where it will give him an undne advantage, or tend to vex and oppress the defendant. Mechanics’ Bank v. Fisher, 1 Rawle 341. In replevin, where the goods have been delivered to the plaintiff, the court will not give him leave to discontinue; and there may be cases, where the court will refuse such leave, though the possession remains with the defendant, on his claim of property. Broom v. Fox, 2 Yeates 530. A party cannot discontinue his suit, after a bond fide assignment of the debt, to a third person, for a valuable consideration. McCullum v. Coxe, 1 Dall. 139. Under a plea of payment, proof of the discontinuance of a suit cannot be given in evidence; the defendant, by appearing and making defence, waves the objection. Latapee v. Pecholier, 2 W. C. C. 180.