Opinion
March Term, 1818.
The court will not permit a cross-bill to be filed where the matter can be easily availed of by other means, such as the examination of the party or witnesses on taking an account.
And when leave is given, after the application has been long delayed, it will only be on condition that, it shall not delay the hearing of the original bill.
[Cited in: 1 Tenn. Chy., 172; 4 Lea, 458.]
Upon a motion of Whitesides to be at liberty to file a cross-bill, Roane and Haywood, J.J., were of opinion and so stated to the bar as follows: — This cause has been eleven years depending. A reference has been made of the accounts between the parties, but the account has not yet been taken, and before a motion of this sort be allowed it ought to be considered: First, whether the amendment moved for be material; secondly, if material, whether the benefit of that matter may not be had by the defendant in some other way in this cause without a crossbill; thirdly, whether the cross-bill, if filed, should not be upon condition that the hearing should not thereby be delayed. For the Court, on the hearing of the original bill, may, if they find it essential to justice, put off a final determination for the better examination of such matter, if it should then appear indispensable.
Here one allegation of the bill is, that Bell agreed to indemnify Brown against all losses he should suffer by executions, c., from non-payment at the days stipulated of the moneys which Bell covenanted to pay him for his iron-works. And, further, it is stated that Bell failed to do so, in consequence whereof a fi. fa. issued against Brown, to satisfy which the sheriff sold a certain tract of land for a price far below its value. Bell now states that this land, though sold by execution as Brown's, did not belong to him, but to a third person; and, besides, was purchased in for a small sum by Vance, as agent for Brown. What does this statement of the pleading to be established by proof propose? That the contract to indemnify was made: when that is proved, the next thing on the part of Brown is to prove that the land was sold at an undervalue, and that it belonged to him. If Bell shows, on the contrary, that it belonged to any other person, this will defeat the claim, and he can do this, though he should not prove as he now wishes to state in his crossbill, that the right which was in Powell was assigned to himself, nor that the action which depended between Powell and the alienee of Brown lately was discontinued. For though neither the one nor the other be proved, still he will not have to pay the value of the land, and will be discharged from this item of the account, c. And as to the purchase by an agent of Brown's for a small sum, that can be ascertained in taking the account, both by interrogatories to be put to Brown and the oath of Vance, who may be examined as a witness. What good, then, will a cross-bill do? We will never consent to a cross-bill where the matter, though of weight, can be so easily availed of. And were we to allow of one at so late a period for any indispensable cause, yet we would annex thereto a condition, that the allegations as stated in it should not delay the hearing upon the original bill. But that the Court should proceed as if the cross-bill were not filed, and suspend as to the matter of the cross-bill, upon hearing, it should appear necessary for the attainment of justice.
Whyte, J., was for allowing the motion. But it was overruled by the other two judges.