Gouverneur v. Elmendorf

| New York Court of Chancery | Mar 1, 1820

The Chancellor.

The defendant is clearly too late to stay the proceedings by a cross bill. A cross bill must be filed before publication is passed in the original cause. This has been understood and declared to be the invariable rule on the subject of a cross bill. (Sterry v. Arden, 1 Johns. Ch. Rep. 62.) The practice, as stated by Lord Ilardwicke, was not to stay proceedings, but only to stay or enlarge publication in the first cause, until the answer to the cross bill came in: and he said it was never of course, but depended upon special circumstances, whether publication should be enlarged on filing a cross bill, if filed after the original cause ivas proceeded in. (1 Atk. 21. 291. 2 Ves. 336.) It is, therefore, most manifest that the cross .bill must be filed before publication in the original cause. In Cook v. Broomhead, (16 Ves. 133.) across bill was filed after the rules for passing publication had issued in the original cause, and a motion that publication in the original cause, be enlarged, until a fortnight after answer to the cross bill, was refused, with costs, as being against the practice. A motion to enlarge publication, until answer to a cross bill, filed after the answer to the original bill, was, also, denied in Dalton v. Carr, (16 Ves. 93.)

This case presents a series of acts of indulgence on the part of the plaintiffs, and of gross and obstinate delays on the part of the defendant, that are extremely rare; and to allow the cause to be delayed any longer, by a commission, or by a cross bill, would be doing great injustice to the suitor, and a very serious injury to the practice of the Court. The defendant knew that a commission was wanted, in 1811, for he had then already applied for one. He had then visited Kentucky, and discovered all the difficulties and embarrassments attending the title under the land warrants, which he had purchased. Why was not this commission sued out in due season ? The plaintiffs, and their solicitor, deny every charge that the delay was justly imputable to them. And it is worthy of notice, that though the defendant, as he admits in his answer, went to the state of Kentucky, in 1803, and discovered the impediments of which he complains; yet in his last letter of 1807, he sets up no such excuse for non-payment of the mortgage debt. Unfortunate as he states his speculation to have been, he, nevertheless, seems to admit his obligation to pay, and promises to use his efforts to do it.

There is no just pretence to question the regularity of the proceedings, on the part of the plaintiffs, or to stay the suit until the defendant can sue out and execute a commission jpenfucjcy^ or file a cross bill, and compel answers to it. He has lost the opportunity to annex such a condition to either of those measures, by his inexcusable laches. The most that can be granted is to allow a commission to go at the peril of the defendant, and without delay to the plaintiffs. Nor is there any sufficient ground disclosed for allowing the answer to be amended, or, according to the more modern practice, of granting leave to file a supplemental answer. There ought to have been an extremely clear and strong case made out, after what has passed in this cause, showing the mistake in the answer, and the new and material discoveries since. There is no such ground laid for the allowance of so delicate and dangerous an indulgence. The answer was filed many years after a journey to Kentucky, and when all the facts alleged by way of defence, might, with due diligence, have been sufficiently known.

I shall, accordingly, declare, that inasmuch as the answer was filed in November, 1810, and no specific or material mistake therein is shown or alleged; and inasmuch as by the defendant’s affidavit of the 1st of May, 1811, he speaks of an application already then made for the examination of witnesses in Kentucky, and stated, that a commission was necessary to take proof, to show that the testator of the plaintiffs had no interest in the' lands which they undertook to convey; and inasmuch as the rules for publication passed in September, 1818, and were voluntarily relinquished by the plaintiffs in September, 1819 ; and inasmuch as publication again passed on the 23d day of November, 1819, after the same had been enlarged for several weeks, at the instance of the defendant; and inasmuch as the plaintiffs have prosecuted this cause, since the filing of the bill, with forbearance and indulgence, and the defendant has been guilty oinegligence, without excuse, in not filing a cross bill, and in not suing out a commission during this long period of time, and to delay the cause further in its present state, for either of these objects would be unreasonable, and contrary to the rules and practice of the Court, and injurious to the credit of the administration of justice; therefore, the motion to set aside or stay proceedings, or to» amend the answer, is denied, with costs; but the defendant may sue out a commission, on the usual terms, at his peril, and upon condition that the cause is not to be delayed thereby.

Order accordingly.