attention of the court facts constituting a defense, which had occurred since the answer was filed, thus answering the purpose of a plea puis darrein continuance at law.23 Now, however, it is more customary to plead such matters in a supplemental answer.24 Matters which regularly should be included in a cross-bill may by consent be set up in an answer, and relief granted as if a crossbill had been filed; 25 and by consent a cross-bill may be filed when an answer is all that is required to protect the rights of the defendant.26 When matter which should regularly have been set up by a cross-bill or supplemental answer has been pleaded in a petition, it is too late to object to the regularity of the procedure after answer and decree.27 § 172. Frame of a Cross-Bill. A cross-bill should state the previous proceedings in the suit, setting forth specifically the parties, the objects, and the prayer of the original bill; and the rights of the party exhibiting the cross-bill, which are necessary to be made the subject of a cross litigation, or the ground on which he resists the claims of the plaintiff in the original bill, whichever is the object of the cross-bill. It should not introduce new and distinct matters not embraced in or germane to the original suit. For as to such matters it would be an original bill; and they could not properly be examined at the hearing upon the former bill.2 It should not contain any statements inconsistent with those in the answer of the defendant filing it. If so, they may be disregarded; or if principally composed of such, the cross-bill may be dismissed. It would be sustained even if the requisite difference of citizenship do not exist between the plaintiffs and defendants in it, as it is merely auxiliary to the principal suit of which the court has already obtained jurisdic 3 23 Mitford's Pl. ch. 1, § 3; Hayne v. Hayne, 3 Ch. R. 19. See Kelsey v. Hobby, 16 Pet. 269, 277. 24 See Suydam v. Truesdale, 6 McLean, 459; Kelsey v. Hobby, 16 Pet. 269, 277; Talmage v. Pell, 9 Paige (N. Y.), 410, 413; Electrical Accumulator Co. v. Brush Electric Co., 44 Fed. R. 602, 607. Coburn v. Cedar Valley Land & Cattle 2 Story's Eq. Pl. § 401; Weaver v. Alter, 3 Woods, 152; Cross v. De Valle, 1 Wall. 5; Ayres v. Carver, 17 How. 591; 25 Heath v. Erie Ry. Co., 9 Blatchf. 316. Rubber Company v. Goodyear, 9 Wall. See Kelsey v. Hobby, 16 Pet. 269. 26 Northern Railroad v. Ogdensburg & Lake Champlain R. R. Co., 18 Fed. R. 815; s. c. 20 Fed. R. 347. 807. 414. 27 Kelsey v. Hobby, 16 Pet. 269, 277; 117. 3 Savage v. Carter, 9 Dana (Ky.), 409, ♦ Hudson v. Hudson, 3 Randolph (Va.), tion.5 Where a stranger by leave of the state court intervened and then removed the case, and after removal the complainant amended his bill so as to omit all allegations affecting the intervenor, and then moved to remand; the fact that the intervenor had filed a cross-bill against the original parties to the suit was held no bar to the remand. It seems that a cross-bill may in some cases pray relief which could not be obtained by original bill because of a remedy at law. Thus, it has been held that a defendant who is not in possession of land, when a bill is filed against him to remove a cloud to the title to the same, may, if he can show a better title than that of the complainant, obtain possession of the land by cross-bill. A cross-bill filed simply for discovery need show no equity for discovery, as the court's jurisdiction for that purpose is sufficiently supplied by the original bill.8 When a cross-bill is brought by one defendant against another, it seems that the original complainant must be made a party to it.9 It has been said by a judge of great authority that "new parties cannot be introduced into a cause by a cross-bill." 10 It was then held that this could not be done when the result would be to arrange parties of the same citizenship upon different sides of a controversy over which a Federal court would have no original jurisdiction." It has been said, however, that such an objection can be raised only by the new parties thus sought to be brought in.12 And in a suit to restrain the infringement of a patent, a cross-bill was sustained which brought in as defendant to it a new party, the assignor of the patent to the original complainant; claimed that that assignor had previously assigned the equitable title thereto to the orator of the cross-bill, and that the legal assignee had bought with notice thereof; and prayed a conveyance of the patent and an injunction against further annoyance.18 A 5 Peay v. Schenck & Bliss, Woolw.175; Cross v. DeValle, 1 Wall. 5; Osborne Co. v. Barge, 30 Fed. R. 805; Jesup v. Illinois Cent. R. Co., 43 Fed. R. 483; Morgan's La. & T. R. R., S.S. Co. v. Texas Central Ry. Co., 137 U. S. 171. But see Veach v. Rice, 131 U. S. 293, 318. ch. 1, § 3; Doble v. Potman, Hardres, 160. 9 Daniell's Ch. Pr. (2d Am. ed.) 1747; Putnam v. New Albany, 4 Biss. 365, 373. 10 Mr. Justice Curtis in Shields v. Barrow, 17 How. 130, 145. See Randolph v. 6 Iowa Homestead Co. v. Des Moines Robinson, 2 N. J. L. J. 171. Nav. & R. R. Co., 8 Fed. R. 97. 7 Greenwalt v. Duncan, 16 Fed. R. 35. Contra, Calverley v. Williams, 1 Ves. Jr. 211, 213; Story's Eq. Pl. § 398. 11 Shields v. Barrow, 17 How. 130. 12 Brandon Manuf. Co. v. Prime, 14 Blatchf. 371, 373. 13 Brandon Manuf. Co. v. Prime, 14 8 Story's Eq. Pl. § 399; Mitford's Pl. Blatchf. 371. See also Blodgett v. Ho stranger to a suit cannot file a cross-bill without permission from the court.14 A cross-bill filed by a stranger without such permission may be stricken from the file.15 It is the better practice for a defendant to apply for leave before filing a cross-bill.16 In England a cross-bill could be filed in a different court from that where the original bill was pending; 17 but a cross-bill cannot be filed in a State court to a bill pending in a Circuit Court of the United States.18 It is no objection to a cross-bill in a Federal court that an original bill for the same relief was previously filed in a court of the State where the Federal court was held; 19 but after a removal of the suit begun in the State court, the two suits may be consolidated.20 A cross-bill should be signed by counsel.21 In other respects cross-bills should conform to the requirements of original bills.22 It is irregular to unite a cross-bill and an answer in the same pleading.23 A petition "by way of a cross-bill" filed by a defendant, "referring to the case by title, and stating that 'the facts fully appear in the case,' praying the reverse of what the complainant had prayed, but not making anybody defendant nor praying process, and under which no process was obtained," was held a mere nullity, which should have been stricken from the file, and was disregarded by the court upon appeal.24 It seems that a bill filed as a cross-bill, if irregular in that respect alone, may yet be sustained as an original bill.25 A bill intended as a bill of review, but defective in that respect, may be sustained as a cross-bill.26 § 173. Proceedings upon Cross-Bills. bart, 18 Vt. 414; Hurd v. Case, 32 Ill. 45; Jones v. Smith, 14 Ill. 229. 14 Bronson v. La Crosse & Milwaukee R. R. Co., 2 Wall. 283; Forbes v. Memphis, El Paso & Pacific R. R. Co., 2 Woods, 323. 15 Bronson v. La Crosse & Milwaukee R. R. Co., 2 Wall. 283, 294, 303; Putnam v. New Albany, 4 Biss. 365, 367. 16 See International Tooth-Crown Co. v. Carmichael, 44 Fed. R. 350. 17 Parker v. Leigh, 6 Madd. 115; Story's Eq. Pl. § 400. 18 Story's Eq. Pl. § 400. - It has been held at cir 21 Smith's Ch. Pr. Book II. ch. i. 22 Smith's Ch. Pr. Book II. ch. i.; Daniell's Ch. Pr. (5th Am. ed.) ch. xxxiv. § 1. See Mason v. Gardiner, 4 Brown Ch. C. 436; Greenwalt v. Duncan, 16 Fed. R. 35. 23 Hubbard v. Turner, 2 McLean, 519, 540; Morgan v. Tipton, 3 McLean, 339, 344. But see Talbot v. McGee, 4 Monr. (Ky.) 375, 378. 24 Washington R. R. v. Bradleys, 10 Wall. 299, 300, 303. 25 Foss v. First Nat. Bank, 1 McCrary, 474. 26 Houghton v. West, 2 Brown Parl.. 19 Brandon Manuf. Co. v. Prime, 14 Rep., by Tomlins, 88; Story's Eq. Pl. cuit that a subpoena to answer a cross-bill may, by express leave of the court, be served by substitution upon the attorney for the complainant to the original bill when his client is beyond the jurisdiction of the court. In that case the original bill was filed to foreclose a mortgage, of which the cross-bill prayed a cancellation. The court said: "The reason of this rule would seem to limit it in equity cases to cross-bills, either wholly or partly defensive in their character, and to deny its application to crossbills setting up facts not alleged in the original bill, and which new facts, though they relate, as they must, to the subject-matter of the original bill, are made the basis for the affirmative relief." 2 Leave to make substituted service was refused in a case where the plaintiffs offered to stipulate that the matter sought to be pleaded by cross-bill might be set up by answer. Service by publication of a subpoena upon a cross-bill is improper. "Where a defendant in equity files a cross-bill for discovery only against the plaintiff to the original bill, the defendant to the original bill shall first answer thereto before the original plaintiff shall be compellable to answer the cross-bill. The answer of the original plaintiff to such cross-bill may be read and used by the party filing the cross-bill at the hearing, in the same manner and under the same restrictions as the answer praying relief may now be read and used."5 By amending his bill, the plaintiff was held in England to lose the benefit of a similar rule, provided that, when he made the amendment, he knew that the cross-bill had been filed. The testimony taken under the cross-bill may be read for or against the original bill; and the testimony taken under the original bill can be read for or against the cross-bill. In either case a formal order granting leave to do this, "saving all just exceptions," should first be obtained ex parte. Both bills are usually heard together both in the first instance § 173. 1 Lowenstein v. Glidewell, 5 Dill. 325; Kingsbury v. Buckner, 134 U. S. 650, 676, Peay v. Schenck & Bliss, Woolw. 175; Johnson R. R. Signal Co. Union Switch & Signal Co., 43 Fed. R. 331. But see Rubber Co. v. Goodyear, 9 Wall. 807, 810, 811; § 96 and citations. 2 Caldwell, J., in Lowenstein v. Glidewell, 5 Dill. 325, 328. See Rubber Co. v. Goodyear, 9 Wall. 807, 810, 811; and supra, § 96. and upon ap 4 Webster Loom Co. v. Short, 10 Off. Gaz. 1019. 5 Rule 72. 6 Noel v. King, 2 Madd. 392; Hannah v. Hodgson, 30 Beav. 19. 7 Gray v. Haig, 13 Beav. 65. 8 Daniell's Ch. Pr. (5th Am. ed.) 1552, 1553; Lubiere v. Genou, 2 Ves. Sen. 579. 9 Ayres v. Carver, 17 How. 591; Moore v. Huntington, 17 Wall. 417, 422; Ex parte Railroad Co., 95 U. S. 221; Daniell's Ch. 3 Heath v. Erie Ry. Co., 9 Blatchf. 316. Pr. (2d Am. ed.) 1751. peal.10 Where a decree had been made dismissing a cross-bill before a decree upon the original bill, it was held that an appeal therefrom taken before a decree upon the original bill must be dismissed. A decree upon the original bill will supersede a previous decree upon a cross-bill if the two are inconsistent.12 Where the cross-bill seeks relief, the voluntary dismissal of the original bill will not dismiss the cross-bill.18 It is otherwise where the cross-bill merely seeks discovery.14 It has been held that a dismissal of the original bill by the court after a hearing operates as a dismissal of a cross-bill between the defendants, even though the cross-bill show a good case for relief; "but as a cross-bill, it must follow the fate of the original bill." 15 A cross-bill should not be filed before the answer to the original bill.16 It should regularly be filed with, or immediately after, the defendant's answer, but may be allowed any time before the final decree.18 But a creditor who has come in under a decree for the benefit of creditors may file a cross-bill without leave of the court, if his rights cannot be otherwise adequately protected.19 In a case where the defendant, after answer, learned of facts tending to show that the plaintiff had before suit parted with all interest in the subject-matter to a citizen of the same State as the defendant, the proceedings were stayed until the complainant answered a cross-bill charging such a transfer.20 When an abatement takes place after a cross-bill has been filed, it seems that there should be a bill of revivor filed in both the orginal and the cross cause.21 Otherwise, proceedings upon cross-bills are substantially the same as those upon original bills.22 10 Ayres v. Carver, 17 How. 591; Ex Coast L. J. 211; Jesup ». Illinois Cent. R. parte Railroad Co., 95 U. S. 221. Co., 43 Fed. R. 483. 11 Ayres v. Carver, 17 How. 591. 12 Ex parte Railroad Co., 95 U. S. 221, 225. 18 Lowenstein v. Glidewell, 5 Dill. 325; Chicago & Alton R. R. Co. v. Union Rolling Mill Co., 109 U. S. 702. 14 Donohoe r. Mariposa Land & Mining Co., 1 Pacific Coast L. J. 211, 219. 15 Mr. Justice Field in Dows v. Chicago, 11 Wall. 108, 112. See also Cross v. De Valle, 1 Wall. 5, 14. But see Wabash, St. L. & P. Ry. Co. v. Central Trust Co. of N. Y., 22 Fed. R. 138, 142; Donohoe v. Mariposa Land & Mining Co., 1 Pacific 16 Allen v. Allen, Hempst. 58. 17 Daniell's Ch. Pr. (2d Am. ed.) 1745; White v. Buloid, 2 Paige (N. Y.), 164; Allen v. Allen, Hempst. 58. 18 Neal v. Foster, 34 Fed. R. 496; Rogers v. Reissner, 31 Fed. R. 592. 19 La Touche v. Lord Dunsany, 1 Sch. & Lef. 137; Story's Eq. Pl. § 397. 20 Young v. Pott, 4 Wash. 521. 21 Story's Eq. Pl. § 363. 22 See, however, Lautz v. Gordon, 28 Fed. R. 264; Puetz v. Bransford, 31 Fed. R. 458. |