make an issue, and have a hearing upon it when the original bill is heard.22 The original cause and cross cause are usually, though not necessarily, heard together. The cross cause may be heard first, if it involves a preliminary question, proper to be disposed of before proceeding to hear the original cause.

$ 680. Hearing of causes together.

23

In cross suits, and also in other suits where there are two. causes between the same parties involving the same point in dispute, and where it is material that both causes should be heard together, if both are set down for hearing, but stand at a distance from each other, the court may permit the cause which stands last to be advanced, or that which stands first to be adjourned, so that both may come on at the same time; and likewise, if it be necessary, the depositions taken in one cause to be read in the other, an order for that purpose having been previously obtained.24

§ 681. Objection for want of parties.

The proper time for taking an objection for want of parties is upon opening the pleadings, and before the merits are discussed; but it frequently happens that, after a case has been gone into and thoroughly heard, the court has felt itself compelled to let it stand over for the purpose of amendment. The

22 Reed v. Kemp, 16 Ill. 445. Where a cross bill has been filed, and a demurrer is put in thereto, and the latter might be properly sustained because the cross bill fails to present upon its face sufficient grounds for affirmative relief, it is not error for the court to proceed to a hearing of the original cause without regarding the cross bill, or disposing of the demurrer. Crabtree v. Levings, 53 Ill. 526.

23 Randolph's Appeal, 66 Pa. 178. See, also, 1 Harrison, Ch. Pr. 367; Hinde, Pr. 54; Sanders v. Sanders' Ex'r, 3 Bibb (Ky.) 286; Coleman v. Moore, 3 Litt. (Ky.) 355; Whyte v. Arthur, 17 N. J. Eq. 521.

241 Barbour, Ch. Pr. 320; Nevil v. Johnson, 2 Vern. 447; Wilford v. Beaseley, 3 Atk. 501. See, also, Yingling v. Hesson, 16 Md. 112; Ex parte Brown, 58 Ala. 536; Evans v. Evans, 23 N. J. Eq. 180; Beach v. Woodyard, 5 W. Va. 231; Linn v. Patton, 10 W. Va. 187; Preston v. National Exchange Bank of Baltimore, 97 Va. 222, 33 S. E. 546. See supra, § 665.

objection for want of parties ought to proceed from the defendant, for it has been decided that the complainant, bringing his cause to a hearing without proper parties, cannot put it off without the consent of the defendant, though there are exceptions to this rule.25 An objection at the hearing for want of a particular party may be obviated by the complainant's waiving the relief he is entitled to against such party.28 Where the evident consequence of the establishment of the rights asserted by the bill might be the giving to the complainant of a claim against other persons, who are not parties to the suit, the complainant, by waiving that claim, may avoid the necessity of making those persons parties. This, however, cannot be done to the prejudice of others.27 In some cases, the defect of parties has been cured at the hearing by the undertaking of the complainant to give full effect to the utmost rights which the absent party could have claimed; those rights being such as could not affect the interest of the defendants.28

§ 682. Ordering cause to stand over for new parties.

If objection for want of proper parties is taken at the hearing, a reasonable time will be allowed the complainant, if the objection prevails, to bring the proper parties before the court, unless it appears that they were omitted fraudulently, or in bad faith.29 The English practice was to order the cause to stand over on paying the costs, in order to give the complainant an opportunity to make the proper parties.30 If the objection for

25 1 Barbour, Ch. Pr. 320; Jones v. Jones, 3 Atk. 111; Darwent v. Walton, 2 Atk. 510; Innes v. Jackson, 16 Ves. 356.

26 1 Barbour, Ch. Pr. 320; Pawlet v. Bishop of Lincoln, 2 Atk. 296. 27 1 Barbour, Ch. Pr. 321.

28 1 Barbour, Ch. Pr. 321; Harvey v. Cooke, 4 Russ. 35. See supra, §§ 56-59, 217, 218, 383, 389.

29 Van Epps v. Van Deusen, 4 Paige (N. Y.) 64; Green v. Poole, 5 Brown, Parl. Cas. 504; Court v. Jeffery, 1 Sim. & S. 105. See Stafford v. City of London, 1 P. Wms. 428; Rowland v. Garman, 1 J. J. Marsh. (Ky.) 76.

30 1 Barbour, Ch. Pr. 321; Anonymous, 2 Atk. 14; Jones v. Jones, 3 Atk. 111; Gordon v. Holland, 38 N. C. 362; O'Brien v. Heeney, 2 Edw.

31

want of parties is distinctly taken by the defendant by plea, demurrer, or answer, and the complainant, notwithstanding, goes to hearing without amending his bill by bringing in the necessary parties, the court, in its discretion, may refuse to permit the cause to stand over, and may dismiss the bill.31 An order allowing a cause to stand over cannot be appealed from.32 If the complainant, after such order, neglects to proceed thereunder, the bill may be dismissed for want of prosecution.33 If, after the entry of such an order, the cause comes on for hearing again, an objection for want of parties, which might have been made in the first instance, is too late.34 Such an order will not be entered unless the complainant will be entitled to relief upon the case made by the bill on joining the proper parties.35

§ 683. Form of order that cause stand over to add new parties. [Title of court and cause.]

This cause coming on to be heard, and both parties being present in open court by their respective solicitors, and it appearing to the court that R. S. is a necessary party to this cause, and the court being fully advised in the premises,

It is ordered that this cause do stand over, and that the complainant be at liberty to make the said R. S. a party, either by amendment or supplemental bill, as he may be advised.

8684. Ordering cause to stand over to supply proofs.

Leave may be also given by the court at the hearing for the cause to stand over for the purpose of supplying defects in the testimony under special circumstances, as, for example, to en

Ch. (N. Y.) 242; Beardsley v. Knight, 10 Vt. 185, 33 Am. Dec. 193; McLaughlin v. Van Kueren, 21 N. J. Eq. 379; Kempton v. Bartine, 60 N. J. Eq. 411, 44 Atl. 461; City of Wilmington v. Addicks (Del. Ch.) 43 Atl. 297; Cook v. Mancius, 3 Johns. Ch. (N. Y.) 427; Satterthwaite v. Marshall, 4 Del. Ch. 337.

311 Barbour, Ch. Pr. 320; Van Epps v. Van Deusen, 4 Paige (N. Y.) 64; Lord v. Underdunck, 1 Sandf. Ch. (N. Y.) 46.

32 Beresford v. Adair, 2 Cox, 156.

33 Mitchel v. Lowndes, 2 Cox, 15.

34 Jones v. Jones, 3 Atk. 217.

35 Mitchell v. Lenox, 1 Edw. Ch. (N. Y.) 428.

able a party to procure an instrument to be stamped, without which it could not be received in evidence.36 This permission is, however, cautiously granted after publication of the testimony has passed, and is generally confined to proofs by documentary evidence, or the execution of deeds and other papers, where the dangers attending such proofs are not so great.37

§ 685. Form of order for cause to stand over to supply proofs. [Title of court and cause.]

This cause coming on to be heard this day, and counsel for both parties having been in part heard, and it appearing to the court that the complainant has omitted to introduce proof of the death of D. B., his intestate,

It is ordered that this cause stand over, to the end that the complainant may examine witnesses to prove the death of such intestate.

§ 686. Directing an action at law.

Under the chancery practice, wherever the foundation of a claim was a legal demand, and the question whether a new trial should or should not be had could be discussed with more satisfaction in a court of law than in a court of equity, the latter court would direct an action at law.38 The court, in dismissing a complainant's bill, will sometimes do so without prejudice to his right to proceed at law.39 It will also, where a complain

36 1 Daniell, Ch. Pl. & Pr. (6th Ed.) 858; 1 Barbour, Ch. Pr. 322; Huddleston v. Briscoe, 11 Ves. 595; Moons v. De Bernales, 1 Russ. 301; Wood v. Stane, 8 Price, 613; Cartwright v. Cartwright, 2 Dickens, 545; Cox v. Allingham, Jac. 337; Desplaces v. Goris, 5 Paige (N. Y.) 252; Lewis v. Lanphere, 79 Ill. 187; Robbins v. Hanbury, 37 Fla. 468, 19 So. 886.

37 Robbins v. Hanbury, 37 Fla. 468, 19 So. 886. See Cox v. Alling. ham, 1 Jac. 337. See, for reviewing chancellor's refusal to order cause to stand over, Robbins v. Hanbury, 37 Fla. 468, 19 So. 886.

88 Fisher v. Carroll, 46 N. C. 27; 1 Barbour, Ch. Pr. 465; Decker v. Caskey, 1 N. J. Eq. 427; 2 Smith, Ch. Pr. 90 et seq.; Delaware, L. & W. R. Co. v. Breckenridge, 56 N. J. Eq. 595, 40 Atl. 23; American Dock & Improvement Co. v. Trustees for Public Schools, 37 N. J. Eq. 266; Hope v. Hope, 10 Beav. 581.

39 1 Barbour, Ch. Pr. 465; Mortlock v. Buller, 10 Ves. 292; McNamara v. Arthur, 2 Ball & B. 349.

ant's right to equitable relief depends upon a legal title, retain the bill for a certain period, giving the complainant liberty in the meantime to bring an action for the purpose of establishing his right at law, in order to found the equitable relief.40 Such cases are those in which it is necessary for the complainant to establish his right at law in order to found the equitable relief. The practice cannot be made use of to enable the complainant first to try whether he has any claim at law, and then, if he fails there, to come into a court of chancery to try to raise an equity." An action is ordered to be tried in a court of law when the equity is based on a disputed legal right, or where the defense set up involves a legal right.42 An order granting leave to bring an action at law on an injunction bond taken in a court of chancery may be rescinded, if the equities of the parties were not considered at the time of its allowance.43 Where the bill is retained, with liberty to bring an action at law within a limited time, unless such action is so brought, the bill will be dismissed. The court directs the action to be brought in such a form that the result shall be regarded as conclusive.45 It will also provide for a satisfactory trial, by restraining the parties from setting up any legal obstacles to the fair trial of the case, such as outstanding terms, the statute of limitations, or bankruptcy. It will order the parties to make such admissions as are necessary to bring the matter in dispute properly before the court, and will give the same directions as to the examination of the parties, the reading of depositions, and the production of documents as are given upon directing issues. 46 As the action

44

40 1 Barbour, Ch. Pr. 465; Seton, Decrees, 356; Sellman v. Bowen, 8 Gill & J. (Md.) 50, 29 Am. Dec. 524. See, also, Brown v. Cranberry Iron & Coal Co., 25 U. S. App. 692, 72 Fed. 103.

41 1 Barbour, Ch. Pr. 465; Walton v. Law, 6 Ves. 150. See American Dock & Improvement Co. v. Trustees for Support of Public Schools, 36 N. J. Eq. 16.

42 Fisher v. Carroll, 46 N. C. 27.

43 Easton v. New York & L. B. R. Co., 30 N. J. Eq. 236.

44 1 Barbour, Ch. Pr. 465.

45 Bootle v. Blundell, 19 Ves. 500.

46 1 Barbour, Ch. Pr. 466; Pemberton v. Pemberton, 13 Ves. 298;