An appellant from a decree of the probate court may have his appeal dismissed at any time before trial. In such case, the sureties upon the bond of the appellee will not be allowed to prosecute the appeal when their interests are adverse to those of the appellant and their reasons of appeal different from his.
BLODGETT, C. J.
In analogy to the right of a plaintiff to become nonsuit before opening his case to the jury, it is the right of an appellant from the decree of the probate court to have his appeal dismissed at any time before trial. Doughty v. Little, 61 N.H. 365, 366; Simpson v. Gafney, 66 N.H. 477.
So far as appears, there was no error in denying the sureties' motion that they be allowed to prosecute the appeal. Their interests are understood to be adverse to those of the appellant, and their reasons of appeal to be different from his; and, if this be so, the granting of their motion would not subserve their purpose, because the only reasons of appeal before the court would be those assigned by the appellant in conformity with the statutory requirement. P. S., c. 200, s. 2. Under these circumstances, neither law nor the furtherance of justice would require the granting of the motion.
Exceptions overruled.
PARSONS, J., did not sit: the others concurred.