54 Tenn. 121 | Tenn. | 1872
delivered the opinion of the court.
Hildebrand filed the original bill in this case, in which he charges that the defendant Beasley holds two notes to which complainant had signed his name; the first, a note for $700, payable to J. J. Smith, executed by A. M. D. Hendrickson and John W. Smith; the other a note for $1,000, executed also by said Hendrickson and Smith, and payable to J. G. Mason. The complainant charges, that his name appears to both of these notes, but that he signed them both after they had been executed and delivered
The elementary authorities hold that a cross-bill must be confined to matters growing out of the original bill; and according to some authorities new parties cannot be introduced into a cause by a cross-bill. See 2 Daniel Ch. Pr., 1647, citing 17 Howard, 145. But under our practice we should not be inclined to carry the doctrine so far.
In this cause conceding, as is done, that Beasley may maintain his cross-bill for relief upon the two first notes, we think he should be allowed to prosecute it also against Fort, for the purpose of making effectual his relief against the land attached. Fort is also made a party for this purpose; he has no other interest in the subject matter; but for the purpose stated he is an indispensible party. It is the policy of the law to prevent a multiplicity of suits, and upon the facts stated in the cross-bill, the relief to
As to the other two notes, the Chancellor was probably correct in holding the cross-bill multifarious.
Section 4326 of the Code provides: “If a demurrer for multifariousness be sustained, the court may authorize amendments, by directing separate bills to be filed, without new process as to the parties before the-court, and by the addition of new parties, or otherwise, as may be deemed necessary for the attainment of justice.”
It is true that no leave was asked to make this amendment, but as the decree is reversed upon the other ground, we think that the complainant in the cross-bill should still be allowed to amend as to the last notes,- under the provisions above referred to.
The decree will accordingly be reversed. The costs of this court will be paid one-half by the complainant in the original bill, the other half by the complainant in the cross-bill.