without permission from the court. A cross-bill filed by a stranger without such permission may be stricken from the file.15 In England a cross-bill could be filed in a different court from that where the original bill was pending; 16 but a crossbill cannot be filed in a State court," nor in another Federal court 18 to a bill pending in a Circuit Court of the United States. 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. In other respects cross-bills should conform to the requirements of original bills. It is irregular to unite a crossbill and an answer in the same pleading." 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. It seems that a bill

defendant against the objection of complainant, and hence a cross-bill filed by a person thus coming into the cause should be dismissed. Gregory v. Pike (C. C. A.), 67 Fed. R. 837. See Thruston v. Big Stone G. I. Co., 86 Fed. R. 484.

14 Bronson v. La Crosse & M. R. Co., 2 Wall. 283; Forbes v. Memphis, E. P. & P. R. Co., 2 Woods, 323; Gregory v. Pike, 67 Fed. R. 837.

15 Bronson v. La Crosse & M. R. Co., 2 Wall. 283, 294, 303; Putnam v. New Albany, 4 Biss. 365, 367.

24

20 Wabash, St. Louis & P. Ry. Co. v. Central T. Co., 23 Fed. R. 513. 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. A cross-bill seeking the distribution of a trust fund created by will, and also to subject complainant's share of the trust fund to the payment of a judgment obtained against him by one of the defendants, was held multifarious.

16 Parker v. Leigh, 6 Madd. 115; Plum v. Smith, 56 N. J. Eq. 468, 39 Story's Eq. Pl., § 400.

17 Story's Eq. Pl., § 400. See Tansey v. McDonnell, 142 Mass. 220, 221; Bowman v. Long, 27 Ga. 178; Neal v. Foster, 34 Fed. R. 496, 497.

18 Cf. Gray v. Taylor (N. J. Ch.), 38 Atl. R. 951.

19 Brandon Mfg. Co. v. Prime, 14 Blatchf. 371.

Atl. R. 1070.

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. 303.

filed as a cross-bill, if irregular in that respect alone, may yet be sustained as an original bill 25 or as a petition pro interesse suo.26 Matters which regularly should be included in a crossbill may by consent be set up in an answer, and relief granted as if a cross-bill had been filed.27 Where testimony had been taken without objection in support of a claim pleaded in an answer, it was held to be too late to object at the hearing because no cross-bill had been filed.28 By consent a cross-bill may be filed when an answer is all that is required to protect the rights of the defendant." 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. A bill intended as a bill of review, but defective in that respect, may be sustained as a cross-bill. Where the State practice permitted affirmative relief upon an answer and such answer was filed before a removal, it was held that a cross-bill need not be filed in the Federal court.32

30

§ 173. Proceedings upon cross-bills. It is the better practice for a defendant to apply for leave before filing a cross-bill.1 Ordinarily, a refusal to grant leave will not be reviewed upon an appeal. A cross-bill should not be filed before the answer

25 Foss v. First Nat. Bank, 1 McCrary, 474.

26 Heath v. Erie Ry. Co., 9 Blatchf 316. See Kelsey v. Hobby, 16 Pet 269.

27 Gregory v. Pike, 67 Fed. R. 837. In this case, the costs of the crossbill were imposed upon the crosscomplainant.

28 Northern R. Co. v. Ogdensburg & L. C. R. Co., 18 Fed. R. 815; s. C., 20 Fed. R. 347.

§ 173. Indiana & St. L. R. Co. v. Liverpool, L. & G. Ins. Co., 109 U. S. 168; Brown v. L. C. & M. W. R. Co., 2 Wall. 283; International T. C. Co. v. Carmichael, 44 Fed. R. 350; Mercantile Tr. Co. v. Missouri, K. & T. Ry. Co., 41 Fed. R. 8; Brush El. Co. v. Brush. Swan El. Co.. 43 Fed. R. 701; Brown v. Bell, 4 Hay. (Tenn.) 287. Contra, Neal v. Foster, 34 Fed. R. 496, 498; Beauchamp v. Putnam, 34 Ill. 378, 381. It has been held that a creditor

29 Book v. Justice Min. Co., 58 Fed. who has come in under a decree for R. 827.

30 Kelsey v. Hobby, 19 Pet. 269, 277; Coburn v. Cedar V. L. & C. Co., 138 U. S. 196, 222; Detroit v. Detroit City Ry. Co., 55 Fed. R. 569.

31 Houghton v. West, 2 Brown Pat. R., by Tomlins, 88; Story's Eq. Pl., § 401a.

the benefit of creditors may file a cross-bill without leave of the court, if his rights cannot be otherwise adequately protected. La Touche v. Lord Dunsany, 1 Sch. & Lef. 137; Story's Eq. Pl., § 397.

2 Indiana & St. L. R. Co. v. Liverpool, L. & G. Ins. Co., 109 U. S. 168.

32 Detroit v. Detroit City Ry. Co., Contra, Beauchamp v. Putnam, 34 Ill.

55 Fed. R. 569.

378, 381.

4

to the original bill. It should regularly be filed with, or immediately after, the defendant's answer; but may be allowed any time before the final decree. 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 subjectmatter to a citizen of the same State as the defendant, the proceedings were stayed until the complainant answered a crossbill charging such a transfer. A cross-bill in a suit by a State may be served upon the Attorney-General when he filed the original bill. It has been held at Circuit 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 one case 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 cross-bills 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." 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; 10 and where the cross-bill set up new matter not

3 Allen v. Allen, Hempst. 58. A cross-bill filed before the complainant therein has filed his answer to the original bill may be stricken from the files on motion. Ballard v. Kennedy, 16 S. R. 327; s. c., 34 Fla. 483.

4 Daniell's Ch. Pr. (2d Am. ed.) 1745; White v. Buloid, 2 Paige (N. Y.), 164; Allen v. Allen, Hempst. 58.

5 Morgan's C. & T. R. S. S. Co. v. Texas C. R. Co., 137 U. S. 171. The old practice under which a cross-bill must ordinarily be filed before publication has been abrogated. Neal v. Foster, 34 Fed. R. 496; Rogers v. Reissner, 31 Fed. R. 592; Pullman's P. C. Co. v. Central Tr. Co., 46 Fed. R. 261; Huber v. Diebold, 25 N. J. Eq. 170.

6 Young v. Pott, 4 Wash. 521. But see Westinghouse El. & N. Co. v.

Mustard, 87 Fed. R. 336. It has been said that an objection of a defect of parties must precede the filing of a cross-bill. Plum v. Smith (N. J. Ch.), 39 Atl. R. 1070.

7 Port Royal & A. Ry. Co. v. South Carolina, 60 Fed. R. 552.

8 Lowenstein v. Glidewell, 5 Dill. 325; Kingsbury v. Buckner, 134 U. S. 650, 676; Peay v. Schenck & Bliss, Woolw. 175; Johnson R. R. S. Co. v. Union S. & S. Co., 43 Fed. R. 331. But see Rubber Co. v. Goodyear, 9 Wall. 807, 810, 811; § 96 and citations.

9 Caldwell, J., in Lowenstein v. Glidewell, 5 Dill. 325, 328. See Rubber Co. v. Goodyear, 9 Wall. 807, 810, 811; and supra, § 96.

10 Heath v. Erie Ry. Co., 9 Blatchf.

316

set out in the original bill, germane to the case made by the original bill, and sought to make such new matter the basis of independent affirmative relief." Service by publication of a subpoena upon a cross-bill was held to be improper. 12 It has been held that a cross-bill may be dismissed upon motion before an answer or a hearing when it sets up matter improper for such a pleading, even though it was filed by leave of the court.13 A demurrer may, however, be filed to a cross-bill for want of equity, for multifariousness, for presenting matter improper for a cross-bill, or for objections which would be grounds of demurrer to an original bill.14 "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." 15 By amending his bill, the plaintiff was held in England to lose the benefit of a similar rule,16 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 19

11 Fidelity T. & S. Y. Co. v. Mobile St. Ry. Co., 53 Fed. R. 850.

Trust

18

15 Equity Rule 72. For a case where an answer to a cross-bill was held

12 Webster Loom Co. v. Short, 10 Off. responsive, see Prentiss Tool & SupGaz. 1019. ply Co. v. Godchaux, 66 Fed. R. 234. 16 Noel v. King, 2 Madd. 392; Han-. nah v. Hodgson, 30 Beav. 12. 17 Gray v. Haig, 13 Beav. 65.

13 Dickerman v. Northern Co., 80 Fed. R. 450.

14 Harrison v. Perea, 168 U. S. 311; American & G. M. & L. Corp. v. Marquam, 62 Fed. R. 960. Where a crossbill in equity asks relief foreign to the litigation, in behalf of parties who have a right of action at law, it was held that it should be dismissed "without prejudice," and not "for want of equity." Barrett v. Short, 41 Ill. App. 25.

18 Daniell's Ch. Pr. (5th Am. ed.) 1552, 1553; Lubiere v. Genou, 2 Ves. Sen. 579.

19 Ayres v. Carver, 17 How. 591; Moore v. Huntington, 17 Wall. 417, 422; Ex parte Railroad Co., 95 U. S. 221; Daniell's Ch. Pr. (2d Am. ed.) 1751. See Blythe v. Hinckley, 84 Fed. R. 228.

24

and upon appeal.20 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.21 A decree upon the original bill will supersede a previous decree upon a cross-bill if the two are inconsistent. Where the cross-bill seeks affirmative relief, the voluntary dismissal of the original bill will not dismiss the cross-bill.23 It is otherwise where the cross-bill merely seeks discovery. 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." 25 But the later authorities hold that where the cross-bill is not purely defensive, but seeks original relief, and contains in itself sufficient allegations for an original bill, it is not affected by such a dismissal.26 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 original and the cross cause. Otherwise, proceedings upon cross-bills are substantially the same as those upon original bills.29

27

20 Ayres v. Carver, 17 How. 591; Ex parte Railroad Co., 95 U. S. 221. 21 Ayres v. Carver, 17 How. 591.

22 Ex parte Railroad Co., 95 U. S. 221, 225; Blythe v. Hinckley, 84 Fed. R. 228.

23 Lowenstein v. Glidewell, 5 Dill. 325; Chicago & A. R. Co. v. Union R. M. Co., 109 U. S. 702.

Blewitt (Miss.), 12 S. R. 249. Where one who filed a cross-bill was held to have no standing in court, it was held that other parties who attempted to come in under the crossbill must abide by the result declared against him who filed it. Stainback v. Junk Bros. L. & Mfg. Co., 98 Tenn. 306, 39 S. W. R. 530. See

24 Donohoe v. Mariposa L. & M. Co., also Richman v. Donnell, 53 N. J. 1 Pac. Coast L. J. 211, 219.

25 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 T. Co., 22 Fed. R. 138, 142; Donohoe v. Mariposa L. & M. Co., 1 Pac. Coast L. J. 211; Jesup v. Illinois Cent. R. Co., 43 Fed. R. 483. It was held that where the original bill was dismissed "without prejudice," the cross-bill must also be dismissed "without prejudice." Blewitt v.

Eq. 32.

26 San Diego Flume Co. v. Souther, 90 Fed. R. 164, 167; Sunflower Oil Co. v. Wilson, 147 U. S. 313; Holgate v. Eaton, 116 U. S. 33; Chicago & A. R. Co. v. Union Rolling Mill Co., 109 U. S. 702; Jackson v. Simmons (C. C. A.), 98 Fed. R. 768; Coogan v. McCarron, 50 N. J. Eq. 611, 25 Atl. R. 330. 27 Story's Eq. Pl., § 363.

28 See, however, Lautz v. Gordon, 28 Fed. R. 264; Puetz v. Bransford, 31 Fed. R. 458.