Charles W. Cartwright & another vs. Ferdinand Clark, 4 Met. 104

Wilde, J. This case comes before us again on the petition of the plaintiffs’ counsel for a rehearing — after a decretal order had passed dismissing the bill — on the suggestion that several authorities, not cited on the first argument, would fully sustain this bill as a cross bill. We have looked into the cases and authorities cited on the second argument, but have found nothing in them inconsistent with the principles on which our former opinion was founded.

We formerly decided that this bill, considered as an original bill, could not be sustained either for the purpose of relief or discovery, the court having no jurisdiction of the subject matter of the suit, nor of the person of the defendant: That the bill could not be sustained as a cross bill, because it was filed too late : That the final decree on the original bill of Clark against Cartwright ought not to be delayed to abide the proceedings on the cross bill; so that a set-off, which was sought to be had by the latter bill, could not be attained.

We also laid it down, as a general rule, that a cross bill ought to be filed before publication of the evidence in the original suit, unless the plaintiff in the cross bill will go to the hearing on the proofs already published ; Story Eq.

PI. § 395 ; but that although this was the general rule, the court, if the justice and equity of the case required it, would, on motion, allow a cross bill to be filed after the publication of the evidence, and even after a hearing of the cause, if it should thereupon appear that a cross bill is necessary to a complete and equitable decree in the original suit: But that unless this could be made to appear, a cross bill, filed after the hearing, and without leave of court, could not be sustained.

This decision seems to us to be well founded, and it is not opposed to any rule or principle of equity laid down in the authorities cited. It is not denied, that a cross bill, if filed in season, may be sustained, 'ur foe purpose of obtaining an equitable set-off; and in such a case it is not necessary for the plaintiff to show any ground of equity, as against the plaintiff in the original bill, to support the jurisdiction of the court; a cross bill being considered as a defence in the original suit. Kemp v. Machrell, 3 Atk. 812. Mitf. PI. (3d ed.) 64. Beames Eq. PI. 303.

To obtain the benefit of such a defence, the cross bill must, generally, be filed before the publication of the evidence, and before issue joined ; and if the defendant has a counter demand against the plaintiff, he should, regularly, insist on it in his answer. But although a cross bill may be filed after issue joined, and even after a hearing, if the justice of the case requires it, yet the proceedings in the original cause are not to be delayed in any case, unless upon the special order of the court, founded upon notice of the application to the adverse party.

These rules of practice are laid down by Howard, in his treatise on the Rules and Practice of the Equity Side of the Exchequer in Ireland, Vol. 1, p. 297, and they are referred to with approbation in the case of White v. Buloid, 2 Paige, 164. So it was laid down in Noel v. King, 2 Mad. R. 394, that in no case is the complainant in the original cause compelled to stay proceedings therein, without a special order of court for that purpose. The same rule is laid down in 1 Hoffm. Ch. Pract. 352, and in 2 Mad. Ch. Pract. 328. So in Aylet v.

Easy, 2 Ves. sen. 336, it was ordered by Lord Hardwicke, as a rule of practice, that no cross bill should be filed, after the original cause had been proceeded in, unless on special motion with notice, “ that the court might judge of it on the circumstances, and not of course ; for otherwise it would be easy to delay the hearing of a cause.” These authorities fully sustain the decision of this cause at the former hearing.

The object of the bill is to obtain a set-off against the decree in the original cause, and' this cannot be obtained without delaying that decree until a final hearing can be had on the cross biV Such a delay would be most unreasonable, and cannot be al lowed. Regularly, the defendant in the original cause should have insisted on his counter claim, in his answer, and should have brought his cross suit without delay; so that both cases might have been proceeded m, pan passu.

When a defendant in a common law action relies on a set-off, he must file his claim at the first term when the action is entered in court; and formerly it was ’•equired to be filed in the clerk’s office, seven days before the sitting of the court to which the action was brought.

If the defendant fails so to do, and resorts to a cross action, with the intention of setting off any judgment he may obtain in such action, against the judgment which may be recovered against him in the first suit, he must commence his action with • out any unnecessary delay, or the court will not postpone the trial in the original cause to await the trial in the cross action. In the present case, the original defendants are chargeable with great laches, if they intended to avail themselves of a set-off.

The original cause had been pending five or six years before the cross bill was filed, and that bill also has been pending, for a year since. Under these circumstances, we think the plaintiff in the original suit ought not to be subjected to any further delay, and that the cross bill must stand dismissed.