Commonwealth v. Magee

Citations

• 224 Pa. 166
• 73 A. 346
• 1909 Pa. LEXIS 746

Syllabus

<p>Executors and administrators — Administrator’s bond — Premature suit — ■ Discontinuance — Act of June 14, 1836, P. L. 637.</p> <p>1. The Act of June 14,1836, P. L. 637, prescribes a mode of procedure in actions on administrators’ bonds, and gives to all parties who have several interests the right to join in the suit by suggestion of the right before judgment, or by scire facias after judgment has been entered for the commonwealth. The remedy provided is exclusive and prohibitory of any other.</p> <p>2. Since only one action is permitted and that is for the use of all parties interested, it follows that ordinarily the use plaintiff in the action may not discontinue it. But an action brought on an administrator’s bond, when there has been no default and no one has a right of action, is premature and the party who brought the action and in whose way it stands should be permitted to correct the error by discontinuing and commencing de novo. The better practice in such a case is to obtain leave of court to discontinue.</p> <p>3. In strict law a discontinuance is always by leave of court, but in practice leave to discontinue is assumed in the first place without the formality of an application but subject to be withdrawn on cause shown.</p> <p>4. The discharge of a rule to strike off a discontinuance is equivalent to a grant of leave.</p>