Bank of North America against Fitzsimons

Bank of North America against Fitzsimons. 1810. Philadelphia, Saturday, March 31. Motion to withdraw a case which had been, stated by three parties, refused upon the application of one, notwithstanding one of the court had given an opinion in the cause while at the bal-, and another was a stockholder in the company by whom the action was brought. IN this action a case was stated in 1806, by the plaintiffs, by Mr. Lewis as executor of Benjamin Fuller, and by Samuel and William Hibbert, (all of whom had a judgment against the defendant) to decide the right to a sum of money raised under an execution by the bank, and which by the case was agreed to be considered in court. The Chief Justice had given an opinion, while at the bar, in favour of Mr. Lewis; and Judge Teates, being a stockholder in the bank, declined sitting. Halloxvell and Lngersoll for Messrs. Hibbert, moved to withdraw the case. They said that the situation of the court, was a sufficient ground for the motion, and cited Price v. Parker , to shew that leave might be given to discontinue after a special verdict, which was an analogous case. Gibson and Lewis contra said that the motion could not be granted without consent, which they refused to give. They cited Boucher v. Lawson , and Roe v. Gray , to shew that a discontinuance was not permitted after a special verdict, unless there .was some strong circumstance in the case itself to entitle the party to a favour. t Salk. 178, l>) Cas. -Temp. JSCardw, 194. 2 W Black. 815; [MAJORITY — Tilghma'n C. J. Brackenridge J.] Tilghma'n C. J. Situated as I am, I shall rely very much upon the opinion of Judge Brackenridge. Brackenridge J. I am decidedly against the motion. It would be a precedent, that would involve us in endless difficulties. That a judge has given an opinion before, is not a cause of challenge; and as the judge who is interested, may qualify himself, I cannot, because he refuses to do it, interfere with the rights of a third person. I cannot answer it to those to whom I am answerable. Motion overruled.