(After stating the ease). The only question presented in the record and which we are called on to consider is this: Can the plaintiff after prosecuting his suit thus far, against the will of the defendants, dismiss his action, or in the language of a court of law, take a non suit? We think it too late to do so.
The scope of the plaintiff’s equity to ask the intervention of the court embraces the taking an account of their mutual dealings in order to ascertain the amount due and the postponement of the proposed sale until this can be done; and then the allowance of a reasonable time to redeem; and it involves his correlative duty to pay and to submit to a decree of sale, if he fails to make the payment. This should be provided in the decree of sale as we have said in Mebane v. Mebane, ante, 34.
The whole matter in controversy and the enforcement of the rights of each party under the mortgage are by the plaintiff’s own election taken from the mortgagee’s control and as an essential condition of relief placed under the exclusive jurisdiction of the court and to be retained until a full and final settlement can be made. The jurisdiction thus invoked has been exercised for the benefit of the plaintiff and the sale deferred until a full and unexceptional account is stated, showing what is due and owing to the defendants, and tho cause is ready for a decree of sale; and it would now be most unjust to deny to the defendants all accruing benefit of the proceeding. He who comes into a court of equity seeking its assistance must himself do equity, and the plaintiff cannot be allowed after taking the advantages derived from his action, by putting an end to it, deprive the defendants of the advantages to which they are entitled.
The right to take a non-suit in a court of law was left to the uncontrolled discretion of the plaintiff to be exercised at any time before the rendering of the verdict. It is more *49limited under the present system and is not permitted when a counter-claim is set up by the defendant who thus in turn prosecutes his counter-action against the plaintiff for its recovery. As the account consists of a series of claims of each against the other, the case may come under the operation of the principle applicable to a non-suit. McKesson v. Mendenhall, 64 N. C., 502; Pescud v. Hawkins, 71 N. C., 299 ; Tate v. Phillips, 77 N. C., 126.
The present action is however but a substitute for a bill in equit}7, by which the relief sought could alone be obtained, and we must look to the practice prevailing in that court for the rule to govern us in this case.
The principle is thus laid down by an eminent writer on the practice in the courts of chancery: “After a decree,, however, the court will not suffer a plaintiff to dismiss his own bill, unless upon consent, for all parties are interested-in a decree and any party may take such steps as he may be advised to have the effect of it.” 2 Danl. Oh. Pr., 930. And in this he is sustained by authority.
“After an order to account and report made, the plaintiff cannot dismiss on payment of costs.” Cases cited in note at foot of page.
Chancellor Walworth in Watt v. Crawford, 11 Paige, ch. 470, announces therule in these words: “Before any decree or decretal order has been made in a suit in chancery by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill upon payment of' costs. But after a decree has been made by which a defendant has acquired rights, either as against the complainant or as against a co-defendant in the suit, the complainant’s bill cannot be dismissed without destroying those rights. The complainant cannot in such case dismiss without the consent of all the parties interested in the decree.”
In the case before us the court has acted, suspended the-sale by the. mortgagee, ordered meanwhile a reference of. *50the contested matters of account, the report has been made and its correctness conceded by both parties, and the cause in condition to be finally disposed of. Certainly it would not be equitable now to let the plaintiff put an end to the action and turn the defendants out of court.
There iserror in allowingtheplaintiff to dismiss his action and this will be certified.
Error. Reversed.