7 Johns. Ch. 250 | New York Court of Chancery | 1823
The principal object of the rehearing, is to obtain the benefit of further proof by means of a cross bill. It is to supply, in that way, the defect of direct proof on matters put in issue in the original cause, after testimony had been taken in the cause, and the party had voluntarily gone to a hearing upon the pleadings and proofs as they stood, and in the belief that the facts were sufficiently in issue, and sufficiently proved.
An application of this kind, after hearing, and after a decree, is altogether unwarranted by the rules and practice of the Court. The avowed object of the cross bill, is to put in issue, and establish by proof, the very matters which have been already put in issue, and upon which proof had been taken and submitted to the judgment of the Court, and upon which its judgment has passed. To open the litigation to this extent, would be setting a most inconvenient and dangerous precedent. It is a well established rule, that a cross bill must be brought before Plication has passed in the first cause, unless the plaintiff in the cross bill will go to a hearing on the depositions already published. (Rep. temp. Finch, 103. Wyat’s P. R. 85. Cooper’s Pl. 87. 1 Johns. Ch. Rep. 64.) The object of the rule is to prevent the danger of perjury. It is founded in sound policy, and in a just sense and deep knowledge of the seductions of interest, and the force and influence of the passions.
A cross bill is generally considered and used as a matter of defence $ and, therefore, according to Lord Hardwicke, (Kemp v. Mackrell, 3 Atk. 812.) the first cause and the cross bill are but one cause. It is so intended to be used in this case. But, for whatever purpose the cross bill may be used, if it comes in after publication, the plaintiff in it
The Court will sometimes at the hearing, and in its discretion, direct a cross bill; but this is when it appears that the suit is insufficient to bring before the Court the rights of all the parties, and the matters necessary to a full and just determination of the cause. (Mitf. Pl. 77.) And these instances which I have mentioned, are the utmost length to which the Court has gone in the admission of
In the application now under consideration, there are no special inconsistencies disclosed, but the cross bill is asked upon the broadest terms, and for the avowed purpose of making out a better defence by suppletory proof, after the proof already taken has been found, upon trial, to be insufficient. This is, manifestly, inadmissible. It would be creating a great temptation to abuse, and, what would be extremely grievous, it would go to the destruction of the salutary and uniform practice of the Court. It is infinitely important to the due administration of justice, that the rules of evidence should be stable, and not made to yield to the convenience, or even hardship, of a particular case. If a cross bill could be filed in such a stage of the cause as is presented in this case, and to enable the party to make a fuller defence, “ by putting in issue and establishing the
The cross bill is not pretended to be required for the mere purpose of discovery of facts, resting in the knowledge of the plaintiff. It is not asked for on that ground, nor for that object. It is for the extensive design of putting in issue and establishing the breach of trust in the guardian, and the plaintiff’s knowledge of that guilt, when he dealt with him, as well as the oppression and fraud of the plaintiff, in procuring the bond and mortgage. If the bill was intended for discovery merely, "the object would have been less objectionable; but it would have been still a violation of the practice, and dangerous to truth and integrity, though in a less aggravated degree. It is too late, after publication, to examine even the party in chief, and especially after hearing, when the testimony has been discussed, and its strength or weakness ascertained and declared. In the case last referred to, Lord Eldon held it to be against the practice, to wait even for an answer to the cross bill, filed after rule for publication. It would be exposing the plaintiff to the most dangerous temptation, if, after he had been informed by the history of the suit, that no further testimony could be produced against him, and that the cause was absolutely with him, unless he confessed it away, the defendant was then to be permitted, by a cross bill, to fish for his answer. The Court, as a guardian of the public morals, is called upon to maintain, with a steadier hand, those rules of practice, which have been wisely established to preserve order, to accelerate business, to li
I am, therefore, of the opinion, that the prayer for leave to file a cross bill, for the purpose of a further defence in this suit, is, under the circumstances of the case, entirely inadmissible, and ought to be denied.
The petition for a rehearing is then left to rest solely upon the merits of the case, as it stood at the hearing.
The cause was argued very much at length, and with their usual ability, by the counsel who are now concerned in this application. The reasons stated for a rehearing, independent of the scheme of a cross bill, 1 are only a very brief abridgment of the arguments urged at the hearing, on the part of the defendants ; and, after the very full discussion which has been given to the case, what new light can possibly be thrown upon the cause by a rehearing? The certificate annexed to the petition, is signed by the same counsel who argued the cause; and I am satisfied, that the real object of the application, as well as the solid hope of eventual success, is the further proof to be attained, under cover of the cross bill. If that object be defeated, and the ground of that hope removed, there does not remain much cause for the motion; and I presume, that if the cross bill had not been part of the application, it would not have been made. It is very much of course, to grant a rehearing upon the certificate of counsel. But the certificate itself is granted with great facility, when called for by the dissatisfied party; and if a rehearing be really a matter resting in sound discretion, then, certainly, some discretion ought to be exercised, and the parties ought not, as of course, to be subjected to the delay, and expense, and hazard, and distress, of an unyielding and protracted litigation. If the Chancellor is satisfied that the cause has been exhausted by argument, and if he has given to the case the best exa
The motion for a rehearing, and for leave to file a cross bill, are, therefore, denied, without costs.
Order accordingly.-