White v. Bullock — 3 Edw. Ch. 453

Majority

p. 453

White and another, syndics, &c., of Waterman, v. Bullock and others.

Feb. 1, 1841.

Headnote

Pleading after judgment recovered by a defendant. Supplemental cross bill.

Where a defendant is desirous of availing himself, by means of set-off, of a judgment recovered since he has pleaded, the course is to file a bill in the nature of a supplemental cross bill and not to set it up by way of further plea.

In this suit a plea in bar had been filed ; and now, while it was at issue, the defendant moved for leave to plead a further plea of set-off, arising upon a judgment recovered since the filing of his former plea.

Mr. P. A. Manning, for the defendant Bullock.

Mr. Davidson, for the complainant.

It is not the proper course to file a further plea of the judgment, by way of set-off or to amend the plea already put in by setting up this new matter which has arisen since. But the proper mode of presenting this new matter is by a bill in the nature of a supplemental cross bill by the defendant Bullock, stating the recovery of the judgment and claiming the benefit of a set-off: Mitf. by Jeremy, 329.

The complainants will have an opportunity of answering such a bill and of showing why a set-off of the judgment ought not to be allowed. This will save the necessity of the com

p. 454

plainants amending the present bill, which they say will be requisite if the defendant is permitted to plead the judgment.

Order : that the defendant have leave to file a bill in the nature 0f a SUpplemental cross bill, setting up the recovery of the judgment and claiming to have it set-off against the complainant’s judgment, with liberty to the defendant Bullock to move, after he shall have filed such a bill, for an order that the cause be heard on the original bill and on the cross bill at the same time. The costs of the present application to abide the event.