Yawkey, a non-resident, was joined as defendant with one Emerson, for the purpose of defeating Yawkey’s right to have *316-the case removed to the Federal Court, and plaintiff was allowed on the trial to discontinue as to Emerson. Denfendant in error insisted that liberty to discontinue under the rule was, if not an absolute right, at least in the uncontrolled discretion of the court, and if controllable, it was by a mandamus and not by •exception.

The court discussed the question, but did not determine it, ■and reversed the judgment on the exception.