a suit against the plaintiff, or other parties, touching some matter in litigation in that suit, either to obtain a discovery or full relief to all parties; for, as a defendant cannot in equity xamine a plaintiff as a witness, he can only obtain his testimony by filing a cross bill against him (r). A cross bill being considered as a defence, or a proceeding for the purpose of obtaining a complete determination of a suit already pending in court, and the plaintiff to the cross bill being already drawn into court, as defendant to the original suit, he may avail himself of the assistance of the court, without being bound to shew any ground of equity to maintain its jurisdiction (s). When any question arises between two or more defendants, so that a complete decree cannot be made unless a cross bill be filed, it is necessary for one or more of the defendants to the original cause to proceed against the plaintiff and the rest of the defendants, or against as many of them as shall be deemed proper parties in a cross suit, to bring the disputed point before the court. In all cases where a cross bill is filed, the plaintiff to the former suit is entitled to an answer to his bill before he can be called upon to put in his answer to the cross suit; for this purpose he must move for an order to stay proceedings therein, until the answer has been filed to the original bill (t). But if the plaintiff amend his original bill, subsequently to filing the cross bill, he waives his priority, provided the amendments be such as require an answer (u). When a suit already pending is insufficient to exhibit the rights of all the parties, together with every matter essential (r) 1 P. Wms. 595. (t) Noel v. King, 2 Madd. 392. (s) Mitf. 81. (u) Long v. Burton, 2 Atk. 218. to the full determination of the question in dispute; if such determinatlon be necessary to a complete decree, the court will order a cross bill to be filed for this purpose (v). The answer to a cross bill filed for discovery cannot be taken, and made to form part of the original answer; but the defendants to the original bill, having obtained the discovery, should move for leave to file a supplemental answer (w). Where a defendant in equity files a cross bill for discovery only against the plaintiff in equity, the answer thereto may be read, and used by the party filing such cross bill, in the same manner as the answer to a bill praying relief may now be read and used (x). 2. If, after a decree has been signed and enrolled, a party is not satisfied therewith, but seeks to reverse it, he must file his bill of review, which can only be done upon two grounds-1, Where an error in law is apparent in the body of the decree; 2, Upon the discovery of any new matter or fact since the decree, and which could not have been used when the decree was made (y). If the decree has not been signed and enrolled, and there is error apparent therein, the party impugning it may present his petition of re-hearing; but if the decree be sought to be reversed on new facts, previous to its being signed and enrolled, he must proceed by means of a supplemental bill, in the nature of a bill of review, which is filed for the purpose of supplying the defect which caused the error in the decree upon the former bill. If a bill of review seek to reverse a decree upon error (v) Mitf. 83. (w) The Warden and minor Canons of St. Paul's v. Kettle, Vea. & B. 16. (x) 42 Ord. 26 Aug. 1841. (y) Beames' Orders, 2. apparent therein, it is not necessary to obtain leave of the court for that purpose; but where a party seeks to reverse the decree upon new facts subsequent to publication, leave of the court must first be obtained; and, therefore, in filing a bill of this nature, wherein is stated the former bill and the proceedings thereon, the decree, the point of grievance, and the matter discovered, it is also necessary to state the leave of the court to exhibit the same (z). But a supplemental bill, filed for the purpose of carrying out a decree, does not require any averment that the matter contained in such bill had been discovered since publication, or since the original decree was pronounced. A supplemental bill, in aid of a decree, cannot vary the principal of the decree, but takes that as its basis; supplying any omissions in the decree to enable the court to give full effect to its decision; as in a decree for an account, where the supplemental bill is filed for the want of full directions given in the decree before (a). After the expiration of 20 years from the date of the decree which has been signed and enrolled, a bill of review will not be allowed (b). It seems to be necessary to entitle a person to file his bill of review that he should have performed the decree in the former bill. 3. A bill in the nature of a bill of review, is brought in consequence of error in the decree, where it is pronounced against a party who has no interest in the subject of litigation, or such a degree of interest as was not sufficient to render the decree against him binding on some other person claiming the same interest (c). (z) 1 Vern. 292. (b) Mitf. 88. (a) Hodson v. Bull, Dec. 22, 1842, C. C. 4. A bill to impeach a decree which has been obtained by fraud, is an original bill; and, as the fraud made use of for procuring the decree is the principal object to be shewn, and which can only be done by evidence, it is not necessary for that purpose to obtain leave of the court; and it is of no consequence that the decree was by consent of the parties impeaching it, provided such consent was obtained by fraud. A decree improperly obtained against infants must be impeached by original bill, although no fraud attended the procuring of the decree (d). 5. A bill to suspend the operation of decrees on special circumstances, or to avoid them on the subsequent discovery of new matter, being only had recourse to in cases of urgent necessity, are of course but little used, and form no precedent for matters of an ordinary nature; they are, therefore, only mentioned in this place for the sake of order. 6. A bill to carry a decree into execution is brought in cases where the parties have neglected to obey the decree, whereby their various rights under it have fallen into such confusion and embarrassment by subsequent events, as to render it impossible to carry the decree into execution, without the further aid of the court to ascertain them. 7. A bill in the nature of a bill of revivor is exhibited where the interest of a party dying is transmitted to another in such a manner as may be made the subject of litigation in a court of Equity; as in the case of a party to the suit devising his real estate, the devisee will be entitled to the former suit; yet, for the want of privity of title between the deceased party and the devisee, which would have enabled the proceedings to continue by a bill of revivor, it is necessary to (d) 1 P. Wms. 737. proceed with the suit by an original bill, in the nature of a bill of revivor. 8. Also, if the interest of a party to a bill determine pending the suit, and the property is vested in another who does not claim under him, the suit cannot proceed by a bill of revivor, neither can a supplemental bill supply what is wanting; but the benefit of the former proceedings must be obtained by an original bill in the natnre of a supplemental bill. |