
    Griffith v. Merritt, Executor, &c.
    An action commenced under the judiciary act in the Supreme Court in equity, is not an action “commenced in the late Court of Chancery,” so as to admit a review of the evidence in this court under oh. 306 of 1858, § 19.
    Although such action was instituted, among other purposes, to establish the facts necessary to a defence of a suit commenced in the late Court of Chancery, then pending between the same parties, it is not within the statute of 1858 unless commenced and conducted strictly as a cross-bill.
    ■ Motion to dismiss an appeal. The action was commenced in September, 1847, by bill in the Supreme Court in equity. It prayed an accounting in respect to partnership transactions between the plaintiff and the defendant’s testator and others, in the business of transportation upon the Erie canal; claiming that on such accounting the defendant, as executor, would be found indebted to the plaintiff in a sum more than sufficient to satisfy a mortgage to the defendant’s testator for the foreclosure of which the defendant had commenced an action in the late Court of Chancery, which was then pending and undetermined and in which the plaintiff had set up the same state of facts by way of defence. It also alleged a trust under which the defendant’s testator came into possession of the partnership property, and was charged with the payment of the debt.
    
      Nicholas Hill, for the respondent.
    
      John H. Reynolds, for the appellant
   Johnson, Ch. J.

This motion to dismiss the defendant’s appeal is made upon the ground that no Case and exceptions have been prepared in accordance with the Code and the practice of the court. It is apparent from the slightest inspection of the papers that the fact is so; and the only question, therefore, is, whether this ease can be brought within the single exception to the rule which was created by the Laws of 1858 (ch. 300, § 19). The exception is confined to appeals in actions which were originally commenced in the late Court of Chancery of this State. Unless we are prepared to say that the Legislature did not know that, after the abolition of the Court of Chancery, equity suits were brought in the Supreme Court in equity until the passage of the Code, we cannot say that, by “ actions commenced in the late Court of Chancery,” they meant equity suits wherever commenced.

Another ground is also taken by the appellants, that this is a cross-bill in equity, and therefore a continuance of the original suit of Merritt, executor, v. Griffith et al, which was commenced in the late Court of Chancery. That was a suit to foreclose a mortgage; and a cross-bill, technically speaking, must be confined to the subject matter of the original bill, and cannot introduce, new and distinct matters not embraced in the original suit; and if it do so, no decree can be founded on those matters. (3 Dan. Ch. Pr., 1743.). The bill in this cause was not of that character. While it contained defensive allegations against the claim in the other suit, it was substantially a bill for an account of a trust, on which the plaintiff claimed that a large sum was due to him from the mortgagee, for which he sought a decree. This suit appears to have been carried on after answer, and heard and decided as an original and independent cause, and does not appear to have been heard with or disposed of in connection with the other. Indeed, it is pretty apparent that the existence of the foreclosure suit has been brought to light mainly for the purpose of avoiding a proper settlement of the Case in this cause, and throwing upon this court the examination of the cause at large upon the evidence. We are satisfied that it is not now in a condition to be heard, and that the respondent is entitled to have the appeal dismissed, unless the appellant shall pay the costs of this motion and proceed with diligence to have a Case settled in the Supreme Court.

Ordered accordingly.  