Where it appears upon the face of a bill (or petition having the requisites of an original bill) that the relief sought may be had in a cause already pending, the bill is demurrable and will be dismissed.
Such bill will not be treated as notice of a motion in the original cause.
(Rogers v. Salt, ante 108, cited and approved.)
Bill against a purchaser of lan’d sold under a decree in a former petition, filed to Fall Term 1867 of the Court of Equity for Halifax. A general demurrer being put in and set down for argument, the cause was transferred to this Court.
The bill was filed as an interlocutory petition, and sets forth that some of the plaintiffs in the present cause, at Spring Term 1860 of the Court of Equity for Halifax filed a petition against the others as tenants in common with them, for the sale of a tract of land; that the land was sold under a decree of the court-, and the defendant, Peter R. Hines, became the purchaser; that he gave his bonds for the purchase money, payable in June and December 1861; that the bonds still remain unpaid, but that the title to the land has not been conveyed to the defendant; that he was admitted into possession and has been committing waste on the land. The prayer was that the land be re-sold unless the defendant shall pay the money into the office, and in case of re-sale , that the defendant be required to account for his occupation and waste, and for further relief.
Moore, for the plaintiffs.
*316 Rogers & Batchelor, contra, cited Regers v Holt, ante 108; Singletary v.- Whitaker ante 77; Gotten, exyparte, ante 78 and Whitaker v. Bond, ante 227; also Emerson v. Mallett, ante 234.
Pearson, C. J.
There is nothing to distinguish this case from Rogers v. Holt, ante, 108, and the other cases cited in support of the demurrer.
These authorities are decisive.
We cannot without confounding all idea of equity pleading adopt the suggestion of Mr. Moore, that this bill (for it has all of the requisites of an original both in form and substance) may be treated as a mere notice of a motion in a cause.
Let the demurrer be allowed and the bill be dismissed.
Per Curiam.
Bill dismissed.