
    Wilkes v. Henry.
    Oct. 15 ;
    Dec. 5, 1846.
    The stay of proceedings on appeals from chancery, provided by the statute, is confined to proceedings in the suit in which the decree appealed from is made.
    It does not prevent the party who was successful below, from prosecuting in the same or another court, while the appeal is depending, a demand which was involved in the former suit, but was not decided by the decree.
    The court in which such new action is brought, will on motion exercise its discretion as to suspending the suit until the appeal be determined.
    Where to a bill for an account by H. against W., the latter answered, setting up a distinct demand against H., and subsequently filed a cross-bill reiterating such demand ; the cross causes were heard on pleadings and proofs, and a decree made, dismissing H.’s bill absolutely, andW.’s bill without prejudice, from which decree H. appealed : and W. then filed a bill asserting his demand so set up in the cross-bill, to which H. pleaded in bar the former suits, the decree, and the appeal pending ; it was held, 1. That the new suit of W. was not founded upon the decree appealed from or upon its subject matter. And 2. If it were, that the statute of appeals did not prohibit its prosecution.
    Plea. The bill was filed in the year 1845, for a contribution by the defendant, Henry, towards payments made by the complainant, on a purchase of lots at Manhattanville, on joint account. The defendant pleaded in bar, the following facts :
    On the 28th of July, 1843, the now defendant, Henry, filed a bill in this court against th'e now complainant, Wilkes ; setting forth various dealings between them, and praying for an account and a delivery up of things in action; a transfer by Wilkes of any property in his hands, in which Henry was interested ; and in case of his having sold it, for an account and payment of its value.
    On the 8th of November, 1843, Wilkes answered that bill, and among other things, set forth the subject matter of this suit, and claimed the same amount due that he now claims, and an account of the purchase, and insisted that the same amount should be allowed to him in account against Henry.
    On the 3d of May, 1844, Wilkes filed a cross bill against Henry, advancing the same claims set up in his answer in the original suit. The answer and cross bill of Wilkes, set forth the same subject matter, and such rights and interests therein, as he now claims in this suit; and prayed relief in the same manner, for the same matter and to the same extent, as he now prays in this suit.
    Henry answered the cross-bill; replications were filed, and proofs were taken in the original and cross suits; and such proceedings were thereupon had before the assistant vice-chancellor, that, on the 6th of September, 1845, he decreed that the bill filed by Henry should be dismissed with costs, and that the cross-bill of Wilkes be dismissed without costs and without prejudice.
    On the 6th of November, 1845, Henry appealed to the chancellor from the whole of that decree, and filed the assistant vice-chancellor’s certificate of probable cause, and also a bond duly approved by him for costs, and to stay the proceedings ; which appeal remains depending, and undetermined.
    The defendant, pursuant to the standing rule, obtained a report from one of the master’s of the court, in favor of the truth of his plea ; and it was brought to a hearing on the question of .its sufficiency.
    
      G. W. Morell, and C. Lawton, for the defendant.
    The exception taken by the complainant, to the master’s report, having been overruled; the report stands conclusive as to the truth of the plea and all things therein contained, and is ordered for argument on its sufficiency. As to which:
    
      First. The plea is sufficient in form. (2 Barb. Ch. Pr. 408, &c.)
    
      ■ tSecond. The plea is sufficient in substance. It sets forth and pleads a former suit pending for the same subject matter, and claiming the same interests, as claimed in the present suit. (Story’s Eq. Pl. § 737, 738.)
    
      Third. An appeal to the chancellor, from the whole of the decree of the assistant vice-chancellor of the first circuit, covering the subject matter of the present suit, is now pending and undetermined; and no new action could be brought on the same subject matter of either of those suits, till after the expiration of six months, within which time the defendant had a right by statute to appeal.
    
      Fourth. The appeal covering the subject matter of the present suit, and being properly perfected within the six months ; is a stay of proceedings as to all the subject matters embraced therein. (2 R. S. p. 106, [178,] § 65 and 68, and pages 502 and 503, 2d ed. § 82 and 86 ; 1 John. Ch. Rep. 77; 3 ibid. 161 ; 3 Paige, 381, 384.)
    ■ And this defendant, having been put to his defence by the refusal of the vice-chancellor to stay the proceeding on motion, claims:
    
      Fifthly. That the plea, being true in fact, sufficient in form and substance, covering the whole subject matter of the present suit; is a bar to the further prosecution of this suit. And that the bill must be dismissed with costs. (Mitford’s Pleadings, 239 to 243; Story’s Equity Pl. § 743; 3 Atkyns, 590, 592.)
    
      E. Wilkes, for the complainant.
    1. The plea is informal and bad. It does not pursue the form prescribed. (Beames’ Pleas, 136; Story’s Eq. Pl. § 700, 737 ; Blake’s Ch. Pr. 536, which gives the form.)
    2. A plea of another suit pending, applies only to a suit before commenced by an original, not a cross-bill.
    The cross-bill heretofore filed, is merely an ancillary bill of defence. (Story’s Eq. Pl. § 399.)
    By the defendant’s plea, the cross-bill is regarded as a separate distinct suit, wholly independent of the original bill filed by P. S. Henry.
    
      3. The cross-bill is for a different equity from the present bill.
    4. Such cross-bill or suit, is not pending, but has actually been dismissed and without prejudice ; and the decree of dismissal being duly enrolled thereon, is final, unless appealed from by the complainant in the cross-bill. (Story’s Eq. Pl. § 736, 738, 790 : Mitford’s Pl. 248, 273 ; Beames’ PL 139.)
    Such decree of dismissal, being adverse to the present complainant, and he not having appealed therefrom, the present defendant, P. S. Henry, cannot prevent the legal operation thereof, or impair the right of the complainant, resulting from such decree, by appealing therefrom to serve his own purposes.
    5. The cross-bill was resorted to as a provisional set-off, in case the original bill stood ; but such original bill having failed in its allegations of fraud, the set-off fell with it, and the defendant, (the present complainant,) became restored to his original rights, in the same manner as if no set-off had been put in.
   The Vice-Chancellor.

By the statutes regulating appeals and by the 116th rule of this court, the effect of Mr. Henry’s appeal from the decree in the former suits, is to stay all further proceedings in the court of chancery upon the decree, and upon the subject matter embraced therein. (2 R. S. 178, § 59 to 61 ; ibid. 605, § 80 to 86.)

This suit, however, is in no sense founded upon that decree. It is a distinct original suit, which seeks to enforce a claim unaffected by the decree ; a claim that may be enforced on the one hand, and resisted on the other, precisely as if the former suits had never existed.

Does this bill proceed, “ upon the subject matter embraced” in the decree appealed from ?

I think it does not, for two reasons. 1. In the former suit brought by Mr. Henry, the demand now in question was interposed by way of defence, to be made a set-off in the accounting which would ensue between the parties, in the event of his succeeding. If on his appeal, he shall reverse the decree dismissing that bill, and obtain an order for an account; he may either shut out the consideration of this demand, by the order itself on a suggestion to the court, or apply by motion to compel Mr. Wilkes to elect whether he will proceed with this suit, or will abandon it and rely upon the demand under his answer in the first suit. Thei decree appealed from, decides nothing whatever in respect of this demand ; and its reversal will not' necessarily lead to any decision on the same. Thus the demand is not the subject matter of the decree in the original suit.

Still less can it be so considered, in behalf of Mr.- Henry, in respect of the decree as affecting the cross suit. As to that, the decision was in Mr. Henry’s favor, and by the lapse of time has become conclusive upon Mr. Wilkes. True, the former has appealed from the whole decree, which literally embraces the part of it in his favor, as well as that which is adverse to him. But such is not its substantial effect.

He may waive any portion of his appeal, and the appellate court will not interfere with the parts of the decree to which the waiver applies, unless it be indispensable in order to do complete justice between the parties in respect of some provision of the decree which remains subject to the appeal and is found to be erroneous. No such necessity exists in respect of the dismissal of the cross bill. Nor is this all. Mr. Henry may, when he pleases, dismiss his appeal.

In the mean time, while it is pending, Mr. Wilkes’s demand may become barred by the statute of limitations. This court has no dispensing power over that statute, and it .would be no answer to a defence founded upon it, to show that Mr. Henry appealed from a decree in his favor on a former occasion when this demand was prosecuted ; and while his appeal was pending, a new suit could not be brought. The same result will inevitably ensue, if the appeal should continue a few years, and the decree be finally affirmed.

These considerations, as well as the language of the statute itself, satisfy me that this suit is not for the subject matter embraced in the decree appealed from.

2. There is another ground for regarding the suit as one not affected by the statute regulating appeals.

The stay granted, is of proceedings in the court of chancery upon the decree and its subject matter. It does not in terms extend to any other court. Hence if in this case, Mr. Wilkes had a remedy at law, even if his demand were the subject mab ter of the decree, the appeal would not prevent his commencing a suit at law for its recovery.

The court of law might, and probably would, stay his pro-: ceedings on motion, but that would rest in its discretion.

Does not this show that the statute refers not so much to the court, as it does to the identical suit in which the decree was made ?

Such is my opinion, and I find that it has the sanction of the chancellor.

In Hart v. Mayor, &c. of Albany, 3 Paige, 381, 385, in a very able examination of the effect of appeals in England, and in this state both before and since the revised statutes, he says it was not the intention of the legislature to extend the stay of proceedings by an appeal in a suit to any other proceedings of the respondent, except those in the court of chancery and in that suit. And he subsequently repeats, that as he understands the provision of the statute, the stay is confined to proceedings in. the suit in which the decree appealed from is made.

This leaves the court of chancery to deal with a new suit, precisely as I have observed that a court of law would in a like case, by exercising its discretion as to a stay pending the appeal in another suit. And this is perfectly right.

In the instance before me, it is contrary to all reason that Mr, Wilkes having failed in his cross suit, should be precluded by his opponent’s appeal, from instituting any new proceeding to enforce his demand. Mr. Henry has given no security which embraces the payment of this claim, and yet it is insisted that it shall be stayed or suspended, at the peril of its becoming worthless, or being barred by lapse of time, while the appeal is pending ; and whether the decree be finally affirmed, as Mr. Wilkes has reason to expect, or Mr. Henry shall ultimately dismiss his appeal, there will still have to be a suit to determine the controversy presented by the bill in this cause.

And the same consequence must ensue from the reversal of the decree, if it be confined to those provisions of it which are adverse to the appellant.

The plea must be overruled, and the defendant must pay the' costs and answer the bill in twenty days.  