same extent, the court allowed a decree in favor of the latter defendant against the other without the filing of any crossbill. "When the decision of a controversy between a plaintiff and two defendants raises an incidental and collateral question between the co-defendants, the court will sometimes dispose of the latter by means of a reference to a master, and thus save the expense of a separate suit, and the same course has been taken when it was impossible to give the plaintiff the relief to which he was entitled without first deciding a question between co-defendants." "When the right claimed by a defendant consists simply in excluding the plaintiff from the right asserted by the latter, of course there is no occasion for a cross-bill. Therefore, when a bill is filed by a mortgagor against a mortgagee for redemption, if the defendant can show that the plaintiff is not entitled to redeem, he can obtain the benefit of a foreclosure without filing a crossbill for the purpose; for the dismissal of a bill to redeem upon its merits is itself a foreclosure." It has been said that where an original bill seeks to enforce an equitable title against several defendants, it is improper for a defendant to file a crossbill seeking the enforcement of a title paramount against his co-defendants.8 4 La Touche v. Lord Dunsany, 1 Sch. & Lef. 137, 166, 167; s. c. as Chamley v. Lord Dunsany, 2 Sch. & Lef. 690,718; Langdell's Eq. Pl., § 125. 5 Hood v. Clapham, 19 Beav. 90. See Elliott v. Pell, 1 Paige (N. Y.), 263. "Langdell's Eq. Pl., § 125. terests in the mortgage. Weaver v. Alter, 3 Woods, 152. Where a receiver of a bank filed a bill to set aside a transfer of shares of its stock by one defendant to another, and to hold the transferror liable to the creditors of the bank; it was held 7 Langdell's Eq. Pl., § 123. See Hil- that the transferee could not file a ton v. Barrow, 1 Ves. Jr. 284. 8 Ayres v. Carver, 17 How. 591, 593. Where a bill was filed by one tenant in common of a mortgage against the two others, who had bought in separate parcels the mortgaged property, the complainant seeking to recover from them his share of the purchase-money; it was held that a cross-bill could not be filed by one defendant against the other to recover a balance due him "resulting from the price severally paid and to be paid by them, as compared with the respective amounts" of their in cross-bill to set aside the transaction as between themselves for fraud practiced upon him by the others. Stuart v. Hayden (C. C. A.), 72 Fed. R. 402. In a suit by a depositor against a bank to recover the amount of checks paid on forged indorsements, it was held that defendant could not file a cross-bill against a second bank seeking to recover over in case it was held liable to plaintiff. Pollard v. Wellford, 99 Tenn. 113, 42 S. W. R. 23. Where a bill was filed against the stockholders of an insolvent corpo It has been said that a cross-bill cannot be filed solely for the appointment of a receiver. A party who could not maintain an original bill for certain relief, for example, a creditor who has not reduced his claim to judgment,10 cannot, except ration to collect out of their unpaid subscriptions the amount of a judgment against it, a cross-bill filed by one who had paid a larger proportion of his subscription than the rest, praying for an accounting, and that the others be compelled to pay the judgment, was held bad upon demurrer. Putnam v. New Albany, 4 Biss. 365, 373. Where a bill was filed by a remainderman under a will, claiming that certain provisions of the will establishing prior estates to his own were invalid, and praying that the trustees appointed by the will convey the property devised either to him, or to the heirs-at-law, or to the State; a bill filed by the heirs-at-law, not impugning the estate of the equitable tenant for life, but praying that the estates in remainder, some of which were to persons yet unborn, should be declared invalid, was held improper as a cross-bill. Cross v. De Valle, 1 Wall. 5. See Neal v. Foster, 34 Fed. R. 496, 498; Osborne v. Barge, 30 Fed. R. 805. Where, on a bill by several persons to restrain the infringement of a patent and for an account, the defenses being invalidity of the patent and a license, the court sustains the patent and decrees damages; a bill cannot be sustained as a cross-bill which sets up a judgment in another suit against one of the complainants, and prays that they all set forth and discover what share of the damages is claimed by each, so that the defendant who files the cross-bill may set off his judgment against the share claimed 9 Indiana So. R. Co. v. Liverpool, L. & G. Ins. Co., 109 U. S. 168. But see Union Street Ry. Co. v. City of by his judgment creditor. Rubber Co. v. Goodyear, 9 Wall. 807. Upon bills to enjoin the infringements of patents, it has been held that a crossbill cannot be filed by a defendant to enjoin the infringement of prior patents held by him (New D. Bell Co. v. Hardware S. Co., 62 Fed. R. 462; Stonemetz Pr. M. Co. v. Brown F. M. Co., 46 Fed. R. 851); nor to have the plaintiff's patent declared void as an interference with the same (New D. Bell Co. v. Hardware S. Co., 62 Fed. R. 462); nor by a defendant who claims no title to the patented invention, for the sole purpose of a discovery of the weakness of the complainant's title, an injunction against his suing to enforce his patent, and a decree declaring the patent void (Young v. Colt, 2 Blatchf. 373); nor seeking an injunction against the publication of circulars by plaintiff to defendant's customers, threatening them with suits and penalties if they use defendant's wares, which were charged to be infringements of plaintiff's patent (International T. C. Co. v. Carmichael, 44 Fed. R. 350. See Fougeres v. Murbarger, 44 Fed. R. 292, cited supra, § 74. Ide v. Ball Engine Co., 31 Fed. R. 901), nor where the original bill prayed for an injunction against the infringement of a patent relating to electric signals granted William R. Sykes, for an injunction against the use by complainant of the term "The Sykes System." Johnson R. R. S. Co. v. Union S. & S. Co., 43 Fed. R. 331. It has been held that, in such a suit, Contra, Saginaw, 115 Mich. 300, 73 N. W. R. 243; supra, § 170. 10 Goff v. Kelly, 74 Fed. R. 327. perhaps in an extraordinary case, obtain the same relief by a cross-bill." His remedy, if any exists, is by a petition of intervention. But 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. And a cross-bill filed simply for discovery need 13 a third party who has been allowed defendant corporation had decided to intervene cannot file a cross-bill to cease the manufacture of goods which could not have been main- for a time, and that complainants tained by the original defendant. had directed the concern to continue Curran v. St. Charles Car Co.. 32 Fed. operations, and asked to have comR. 835. But see Ide v. Ball E. Co., 31 plainants restrained from further in. Fed. R. 901. It has been held that, terference; it was held that the crossin a suit brought under United States bill should be stricken out as foreign Revised Statutes, section 4918, touch- to the subject-matter of the original ing interfering patents, affirmative bill. Allen v. Fury, 53 N. J. Eq. 35, 30 relief may be given the defendant Atl. R. 551. On a suit to restrain the upon his answer; and that a cross- enforcement of a judgment, and to bill is unnecessary (Lockwood v. establish as a set-off a legal claim, a Cleveland, 6 Fed. R. 721; Foster v. cross-bill seeking a settlement of a Lindsay, 3 Dill. 127; Electrical Accum. partnership alleged to have formerly Co. v. Brush El. Co., 44 Fed. R. 602); existed between the parties was but may be filed if the defendant so stricken out as foreign to the subchooses. American C. B. Co. v. Li- ject-matter of the original bill. gowski C. P. Co., 31 Fed. R. 466; Elec- O'Neill v. Perryman, 102 Ala. 522, 14 S. trical Accum. Co. v. Brush El. Co., 44 R. 898. Where the plaintiff, claiming Fed. R. 602, 607. Contra, Lockwood the exclusive right under a contract v. Cleveland, 6 Fed. R. 721, 727. An to use the name of defendant in the answer in such a suit cannot be sale of patent medicines, filed a bill treated as a bill to enjoin an infringe against the latter to enjoin a violament. Electrical Accum. Co. v. Brush tion thereof, and the latter filed an El. Co., 44 Fed. R. 602, 609. alleged cross-bill to enjoin complainant from making use of the name not authorized by the contract, it was held that this latter bill was not a true cross-bill, but an original bill. Chattanooga Medicine Co. v. Thedford, 58 Fed. R. 347. See also Colton v. Scott, 97 Ala. 447. In a suit by an administrator to recover assets it was held that a crossbill was demurrable which sought an accounting of the administration of the estate of the intestate's father; although that would have resulted in increasing the estate held by the plaintiff and all the necessary parties were before the court. Harrison v. Perea, 168 U. S. 311; s. c. as Perea v. Harrison, 7 N. M. 666, 41 Pac. R. 529. Where to a bill for the cancellation of certain certificates of stock because unlawfully issued, the defendants alleged by a cross-bill that 11 Calverley v. Williams, 1 Ves. Jr. 211, 213; Goff v. Kelly, 74 Fed. R. 327; Story's Eq. Pl., § 398. 12 Goff v. Kelly, 74 Fed. R. 327; infra, § 201. 13 Greenwalt v. Duncan, 16 Fed. R. 35. show no equity for discovery, as the court's jurisdiction for that purpose is sufficiently supplied by the original bill." Cross-bills were formerly used to bring to the 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.15 Now, however, it is more customary to plead such matters in a supplemental answer. § 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. 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 will 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 jurisdiction. Where a stranger by leave of the State court intervened and then removed the case, and 14 Story's Eq. Pl., § 399; Mitford's Pl., ch. 1, § 3; Doble v. Potman, Hardres, 160. 15 Mitford's Pl., ch. 1, § 3; Hayne v. Hayne, 3 Ch. R. 19. See Kelsey v. Hobby, 16 Pet. 269, 277. 16 See Suydam v. Triesdale, 6 McLean, 459; Kelsey v. Hobby, 16 Pet. 269, 277; Talmage v. Pell, 9 Paige (N. Y.), 410, 413; El. A. Co. v. Brush El. Co., 44 Fed. R. 602, 607. But see Banque Franco-Egyptienne v. Brown, 24 Fed. R. 106, 107; supra, § 170. $172. 1Story's Eq. Pl., § 401; Mitford's Pl., ch. 1, § 3. But see Neal v. Foster, 34 Fed. R. 496. Story's Eq. Pl., § 401; Weaver v. Alter, 3 Woods, 152; Cross v. De Valle, 1 Wall. 5; Ayres v. Carver, 17 How. 591; Rubber Co. v. Goodyear, 9 Wall. 807; supra, § 171. 3 Savage v. Carter, 9 Dana (Ky.), 409, 414. 4 Ibid. 5 Hudson v. Hudson, 3 Rand. (Va.) 117. Peay v. Schenck & Bliss, Woolw. 175; Cross v. De Valle, 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 C. Ry. Co., 137 U. S. 171. But see Veach v. Rice, 131 U. S. 293, 318. 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." When a cross-bill is brought by one defendant against another, it seems that the original complainant must be made a party to it. It has been said by a judge of great authority that "new parties cannot be introduced into a cause by a crossbill." 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.10 It has been said, however, that such an objection can be raised only by the new parties thus sought to be brought in." 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." And the rule seems to be established that, although new parties cannot be introduced by a cross-bill which seeks discovery only, or which is purely defensive, they may when it seeks affirmative relief and their presence is necessary to the determination of the controversy as thus enlarged.13 A stranger to a suit cannot file a cross-bill 7 Iowa H. Co. v. Des Moines N. & R. 462: Allen v. Tritch, 5 Colo. 222, R. Co., 8 Fed. R. 97. 8 Daniell's Ch. Pr. (2d Am. ed.) 1747; Putnam v. New Albany, 4 Biss. 365, 373. 9 Mr. Justice Curtis in Shields v. Barrow, 17 How. 130, 145. See Randolph v. Robinson, 2 N. J. L. J. 171. 10 Shields v. Barrow, 17 How. 130. Similar is Wright v. Frank, 61 Miss. 32. 228; Hurd v. Case, 32 Ill. 457; Jones v. Smith, 14 Ill. 229; Blodgett v. Hobart, 18 Vt. 414; Hildebrand v. Beasley, 41 S. R. (Tenn.) 121, 123; Sharp v. Pike's Adm'r, 5 B. Mon. (Ky.) 155; Coster's Ex'rs v. Bank of Ga., 24 Ala. 39. Parties brought in as defendants to a cross-bill may, in turn, exhibit cross-bills when the same are necessary or proper to terminate the liti 11 Brandon Mfg. Co. v. Prime, 14 gation. Blair v. Illinois S. Co., 42 N. Blatchf. 371. 12 Ibid. 13 Brandon Mfg. Co. v. Prime, 14 Blatchf. 371; Kanawha Lodge v. Swann, 37 W. Va. 176; s. c., 16 S. E. E. R. 895; s. C., 159 Ill. 350. But it has been said that under the practice of the Federal courts one claiming an interest in the subject of litigation cannot properly be made a party |