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Whitbeck v. Edgar

Whitbeck v. Edgar and others

Whitbeck v. Edgar, 2 Barb. Ch. 106 (1847)
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Court
New York Court of Chancery · State Highest Courts
Decided
January 26, 1847
Citations
2 Barb. Ch. 106
Headnotes
Who may file a cross-bill. A defendant cannot demur to a bill, for the misjoinder of other persons as co- • defendants. A demurrer to the whole bill does not lie merely because the prayer for relief is too broad. The proper course, in such a case, is to demur to the part of the relief, specifically prayed for, to which the complainant is not entitled, upon the case made by his bill.
Summary
This was an appeal from an order of the late vice chancellor of the first circuit, overruling a demurrer, of the defendant Edgar, to the complainant’s bill.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court

Text extracted by OCR from a scanned original; check the original for exact wording.

The Chancellor

said "that although it was a general rule that a cross-bill could not be filed by any persons except parties to the original suit, yet that a purchaser, pendente lite, from a *107 party to the suit, was a privy, and might file a bill, in the nature of a cross-bill, to make himself a party to the suit so as to have his rights protected.

He also held that a defendant could not demur to a bill merely because other persons were improperly made defendants in the suit. He said the objection could only be taken by those persons themselves. Neither could a defendant demur to the whole bill on the ground that the complainant asked for too much; that if the prayer for relief was broader than the facts of the case warranted, the defendant should demur to the part of the relief asked for to which the complainant was not entitled.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 10 cases

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1858–1859: 11864–1865: 11872–1873: 11876–1877: 21892–1893: 11894–1895: 11896–1897: 11912–1913: 218582026peak 1876 · 2

Relies on it most ⓘ

  1. Swift v. Ellsworth10 Ind. 205 (1858)
  2. Carlin v. Jones55 Ala. 624 (1876)
  3. Torrent v. Hamilton54 N.W. 634 (Mich. 1893)
  4. Schulz v. Ziegler83 A. 968 (N.J. 1912)
  5. Wheeler v. Town of St. Johnsbury87 A. 349 (Vt. 1913)
  6. Waterbury v. Fisher5 Colo. App. 362 (1894)

Most recent

  1. Wheeler v. Town of St. Johnsbury87 A. 349 (Vt. 1913)
  2. Schulz v. Ziegler83 A. 968 (N.J. 1912)
  3. Fitchett v. Blows74 F. 47 (8th Cir. 1896)
  4. Waterbury v. Fisher5 Colo. App. 362 (1894)
  5. Torrent v. Hamilton54 N.W. 634 (Mich. 1893)
  6. Carlin v. Jones55 Ala. 624 (1876)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 0

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