This is submitted as a delay case. Mahala Miller exhibited her bill of complaint against S. E. Bishop, J. C. Bishop, and James A. Sanders. S.>E. Bishop and J. C. Bishop made their answer a cross-bill, by which they introduced new parties, viz.: Sarah A. Melson and Wm. R. Melson. For this cause the complainant demurred to the cross-bill. The demurrer was sustained, as to the new parties, and the answer or cross-bill as to them was dismissed. From this decree an appeal was prosecuted, and the only question presented here is as to the right in chancery to introduce new parties by a cross-bill.

The complainant seeks to set aside a conveyance made by herself, while an infant, of certain lands described in the complaint, to E. P. Sanders, and also the conveyance of the same land by Sanders to S. E. *368Bishop, one of the respondents. The defense is, that the title of complainant is merely colorable, and that, in truth, she is a mere trustee for Sarah A. and W. R. Melson, sought to be made parties by the cross-bill. It seems that the title of complainant is derived from Aaron Miller, a former husband of Sarah A. Melson, and it is charged that his conveyance to complainant was with an understanding,' or agreement that complainant was to hold said title in trust for said Sarah A., and subject to her control and disposal. Further allegations of the pleadings render it clear, that the Melsons are material and necessary witnesses for the respondents, if not for complainant, and that the interests of the Melsons may be, to some extent, affected by the result of this litigation; but, as between the complainant and respondents, the necessity of making the Melsons parties is not aj)parent at present. If, however, in the progress of the cause, it should appear that a proper decree cannot be rendered without the presence of the Melsons, the court can require them to be brought in. If they choose not to ask tó come in to protect their interests, and to have their rights adjudicated in this action, nothing yet appears why their course should be dictated by the court.

As to the right to introduce new parties in the mode here attempted, the practice, as stated by Daniell, Barbour, Maddock, Smith and Story, would seem to be clearly adverse to the claim of the appellant.

“ A cross-bill, ex vi terminorum, implies a bill brought by a "defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matter in question in the original bill.” Story Eq. PL, § 389; see, also, ib. §§ 392, 396.

“ A cross-bill is a bill brought by a defendant against a plaintiff, or other parties in a former bill depending touching the matter in question in that bill. It is *369treated as a mere auxiliary suit, or as a dependency upon the original suit, and can he sustained only on a matter growing out of the original bill. New parties cannot be introduced into a cause by a cross-bill.” 2 Dan'. Ch. Pr. 1647, ch. 34.

“ A cross-bill is a bill brought by a defendant against a plaintiff, or against any other party to a former bill depending touching the matter in question in that bill.” 1 Smith Ch. Pr. 459, book 2, ch. 1.

In Shields et al. v. Barrow, 17 How. (U. S.) 145, the court say: “ New parties cannot be introduced into a cause by a cross-bill. If the plaintiff desires to make new parties, he amends his bill and makes them. If the interest of the defendant requires their presence, he takes the objection of non-joinder, and the complainant is forced to amend, or his bill is dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross-bill to make new parties is not only improper and irregular, but wholly unnecessary.”

Possibly a contrary rule is intended to be declared in Jones v. Smith, 14 Ill. 229, to which we are referred by counsel for appellant, but this is by'no means certain. ■ New parties were introduced by a cross-bill, and on motion, the latter pleading was stricken from the records. The appellate court, in fact, only held this action of the inferior court erroneous and that the new parties were essential to the determination of the cause. The language of the opinion, however, would seem to be in conflict with the rule stated by the writers on the practice in such a case, and with the views of the supreme court of the United States, quoted supra.

A third party was introduced by a cross-bill in Blodgett et al. v. Hobart et al., 18 Vt. 414, also referred to by counsel for appellant, but no question was raised as *370to the right or propriety of so doing’, either by the parties or the court.

The new parties, in both the cases cited from the Vermont and from the Illinois reports, were manifestly essential to correct results.

Pettison et al. v. Hull et al., 9 Cow. 747, cited by the counsel in support of the cases last referred to, was in the circuit court of New York, wherein the circuit judge, subsequently distinguished as a member of the supreme court of that state, submitted a written opinion, which was published in the concluding volume of his own reports. This case is believed not to be in |3oint, but is applicable to another branch of chancery practice. It only declares the familiar rule, that “ a cross-bill is always necessary when the defendant is entitled to some positive relief beyond what the scope of the complainant’s bill will afford him.” If we correctly understand the case at bar, the respondent can obtain the relief sought by the cross-bill, if warranted by the proof, without the presence, other than as witnesses, of Melson and wife, as far as is shown thus far. It is not for the respondents to protect the interest of these parties. If they choose voluntarily to permit their rights to be jeopardized in this litigation, they alone can complain. The rule stated in 17 How., supra, will afford the respondents every security which their rights demand.

But the question presented on this appeal has been several times before the courts of this state. Walker v. Brungard, 13 S. & M. 723, was an appeal from chancery, wherein the chancellor had said: “ The cross-bill of Thomas F. Walker introduces new and different parties and interests, with distinct and independent matters. Had this been excepted to in the form of a demurrer, plea or claim to object to the same on final hearing, I should have been disposed to keep *371out of consideration of the original bill all matters which relate to the claims of Salmon and Mrs. Brungard, her agents or trustees; but as the whole cross-bill is answered in detail, and the answers relied upon on final hearing,' it is my duty to decide the whole case.” This was substantially approved on error.

Under the doubtful language of Hutch. Code, 770, ch. 54, art. 12, § 1, act of February 15, 1838, the high court of errors and appeals, in Ladner et al. v. Ogden et al., 31 Miss. 332, very distinctly and emphatically delare the practice in chancery on this subject in accordance with the rules stated by the authorities cited supra.

The phraseology of the foregoing provision of Hutch. Code, and that of the Code of 1857, followed in 1871, is radically and clearly intentionally different. Both the latter employ the language of the writers on chancery practice (Code of 1857, art. 51, p. 548; Code of 1871, § 1030), as follows: “Any defendant in a chancery suit may make his answer a cross-bill against the complainant, or his co-defendant or defendants, or all of them; and may introduce any new matter therein material to his defense, and may require the same to be answered; and in the same manner may require of the complainant, or any of the defendants, a discovery of any matter material to his defense, and he shall have process thereon against the defendants to such cross-bill, and the like proceedings therein as in other bills or cross-bills.” And thus the practice in this state, upon the point before us, is settled, both by adjudication and by statute, and, as we think, correctly.

It follows that the decree of the chancellor must be affirmed.

Ordered accordingly.