#### SUSAN FALKNER *against*JAMES T. STREATOR *and another.*

A Court of Equity will not interfere to prevent a party from dismissing his own suit although it may have been instituted to establish a second equity.; for such claimant of a second equity can file a bill against both the parties to the former suit, and thus recover his interest.

The Court interferes to protect equitable interests in a suit at law, from necessity.

Appeal from the Court of Equity of Anson County/his Hon- or, Judge DiCK, presiding.

*Mr. Ilargram*produced in open Court the following power er of attorney, and in pursuance thereof, asked that the suit be dismissed at the plaintiff’s cost, viz:

*“*I, Susan Ealkner, the plaintiff in the above stated case, do hereby authorise and direct Thomas S. Ashe and J. E. Hargrave, or either of them, to have the said suit dismissed at my cost, as the amount therein in controversy, has been settled. June Jth, 1856. Signed, SusaN FalKNee.”

This motion was opposed by Joseph *W.*Falkner, who, through his counsel, produced the following power of attorney : *“*Know all men by these presents, that I, Susan Falk-ner, have this day authorised, constituted and appointed, Joseph Falkner my true and lawful agent and attorney, in my name, behalf and stead, to sue for, and recover, from James *34T. Streator the following negroes, to wit, Jack, Eacliel and child Jane, Lydia and Lavinia; and to employ counsel, and to do all other acts necessary for the recovery of the said negro slaves, in as fall and ¿mple a manner as I myself could do, were I personally present; and the amount of recovery he is to hold and keep for the use and benefit of A. *W.*L. Falkner, his ward. And I hereby bind myself, my heirs and executors, to ratify and confirm all the acts and doings of my said attorney. Given under my hand and seal the 18th day of January, 1856. Signed, SusaN FaleNEe, [Seal.]”

"Hi's Honor being of opinion that the second power of attorney was a revocation of the first, ordered the bill to be dismissed, from which order the said Joseph *W.*Falkner appealed *to*this Court.

Da/rgan, for plaintiff.

No counsel appeared for the defendants in this Court.

PeaesoN, J.

"Where an action at law is instituted in the name of one for the use of another, jurisdiction is frequently exercised in Equity to enjoin the plaintiff at law from dismissing the action. This is put upon the ground of necessity, for the right in controversy being a legal one, can only be established by an action at law; and unless the party entitled to the beneficial interest is allowed to use the name of the party in whom the legal title is vested, the *cestui que use*would be entirely without remedy.

This necessity does not exist where the right in controversy is an equitable one. For, if the party entitled to the first equity dismisses a suit in Equity brought in his name by the party entitled to the second equity, which can only be worked out through the first equity, or if he refuses to allow his name to be used upon a proper offer to indemnify against the costs, the party entitled to the second equity may file a bill against both plaintiff and defendant in the suit which was dismissed, upon a charge of collusion, and in that suit, provided he establishes his own equity, he may establish the equity of *35the one defendant against the other, out of which his equity grows, and thus obtain complete relief. For instance, in this case, a bill may be filed by A. W. L. Falkner against the present plaintiff and defendants, and if the plaintiff in that bill is aide to establish an executed trust in his favor, as distinguished from a mere executory voluntary trust, he may then, upon the charge of collusion, set up any equity which the plaintiff in this bill may have against the defendants. So there is, in cases like the present, no necessity for calling upon the Court to prevent a party from dismissing *Ms own suit*/ and no precedent can be found for the exercise of so stringent a jurisdiction. Indeed, the second equity can only be established by an original bill, and cannot be passed upon as is attempted by the present motion. For, as the matter is now before us, we are wholly unable to decide whether A. W. L. Falkner is entitled to an executed trust, or to a mere executo-ry voluntary trust, which a Court of Equity will not enforce. In this proceeding the only evidence before us is the power of attorney which leaves open the very question upon which the right of A. W. L. Falkner to come into this Court depends. There is no error. The order of the Court below is affirmed.

Per CueiaM. Order below affirmed.