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the order made upon it.89 Such answer is liable to exceptions for impertinence and insufficiency, the same as an answer to an original bill. It must be signed by counsel, and may be put in and filed in the same manner as other answers, which it resembles in all other points.91 Defenses not made in an answer to the original bill cannot be set up in an answer to a bill of revivor, since such bill puts in issue nothing but the character of the new party brought in.92

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If the answer does not admit the complainant's title to revive, or state any circumstances which he is desirous of controverting, it must, if the abatement has occurred after decree, or after issue joined in the original suit, be replied to, after which the proceedings upon it will be the same as upon an original bill. If the bill of revivor is filed before decree, or before issue joined in the original cause, a separate replication is unnecessary.93

§ 872. Order to revive.

In all cases where the suit abates, an order to revive is necessary, and it is not regular to wait until the hearing, and then proceed to revive by decree.94 But where a suit abates by the death of the complainant, those who succeed to his rights may apply to the court to punish a breach of an injunction which has taken place either before or after his death, as soon as they have taken the preliminary steps to revive the suit by bill

89 2 Barbour, Ch. Pr. 54; Nanney v. Totty, 11 Price, 117; Wagstaff v. Bryan, 1 Russ. & M. 28.

90 2 Barbour, Ch. Pr. 54. The defendant may, by his answer, consent that the suit be revived. In that case the complainant may obtain an order of course for the revival of the suit. 2 Barbour, Ch. Pr. 55.

91 2 Barbour, Ch. Pr. 55.

92 Fretz v. Stover, 22 Wall. (U. S.) 198.

93 2 Barbour, Ch. Pr. 55; Catton v. Carlisle, 5 Madd. 427.

941 Smith, Ch. Pr. 522; 2 Barbour, Ch. Pr. 49; Day v. Potter, 9 Paige (N. Y.) 645.

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$886. Filing such bill.

It is said that a bill in the nature of a bill of revivor and supplement may be filed by the assignee of the complainant without leave of court previously obtained.21

the property in controversy is transmitted by a devise, or in any other manner, so that the title, as well as the person entitled, may be the subject of litigation, an original bill in the nature of a bill of revivor and supplement must be filed, on which the question of title may be put in issue and litigated. Douglass v. Sherman, 2 Paige (N. Y.) 358; Manchester v. Mathewson, 2 R. I. 416; Huet v. Say, Sel. Cas. t. King, 53; Backhouse v. Middleton, 1 Ch. Cas. 174. But see post, § 969 et seq.

21 Sedgwick v. cock, 11 Mich. 56.

Cleveland, 7 Paige (N. Y.) 290; Webster v. Hitch-
But see supra, § 880.

(948)

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CHAPTER XLIX.

CROSS BILLS.

§ 887. Definition and general nature.

A cross bill is a bill brought by a defendant or defendants in a suit against the complainant in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill.1 It is usually brought either to obtain a necessary discovery of facts in aid of the defense to the original bill, which use arose from the equity rule that the complainant could not be examined as a witness in the suit, or else to obtain full relief to all parties touching the matters of the original bill.2 As a general rule a cross bill is

1 Mitford, Eq. Pl. 80, 81; Story, Eq. Pl. § 389; Kennedy v. Kennedy, 66 Ill. 190; Thompson v. Shoemaker, 68 Ill. 257; Millsaps v. Pfeiffer, 44 Miss. 805; Ray v. Home & Foreign Investment & Agency Co., 106 Ga. 432, 32 S. E. 603; Blythe v. Hinckley, 84 Fed. 233; Ayres v. Carver, 17 How. (U. S.) 591; Book v. Justice Min. Co., 58 Fed. 827, citing, approvingly, Foster, Fed. Pr. § 170; Shields v. Barrow, 17 How. (U. S.) 145.

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2 Story, Eq. Pl. §§ 389, 390; Kennedy v. Kennedy, 66 Ill. 190; Piggott v. Williams, 6 Madd. 95; City of Colchester v. 1 P. Wms. 595; Gordon v. Gordon, 3 Swanst. 474; Rothschild v. Reg., 3 Younge & C. 595; Spragg v. Corner, 2 Cox, 109; Ayres v. Carver, 17 How. (U. S.) 591; Morgan's Louisiana & Texas Railroad & Steamship Co. v. Texas Cent. Ry. Co., 137 U. S. 171; Blythe v. Hinckley, 84 Fed. 233; Ayers v. City of Chicago, 101 U. S. 187; Hogg v. Hoag, 107 Fed. 807. A cross bill may be filed to enable the defendant to discover evidence in order to defend against that which is alleged against him, but a cross bill not seeking affirmative relief not attainable in an answer will not lie when the defendant filing it seeks no discovery, save where such cross bill is used to assert matter arising subsequent to the filing of the bill. Newberry v. Blatchford, 106 Ill. 584; Morgan v. Smith, 11 Ill. 194; Jenkins v. International Bank, 111 Ill. 462. When a decree on the original bill will not determine the litigation,

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also necessary to enable a defendant to have a decree against a

co-defendant.

8888. Where matter available by answer, cross bill improper.

If the facts which the defendant wishes to set up destroy the complainant's cause of action by their own force and operation, they constitute a defense, and should be set up by answer or plea; but if they only furnish a reason why the court should make a decree depriving the complainant of his cause of action, they must be set up by cross bill. The object of a cross bill being to enable the defendant to obtain affirmative relief, if the facts alleged in it are nothing more than a defense to the case made by the bill, and, if proved, could afford the defendant no affirmative relief, the cross bill will be obnoxious to a demurrer.5

or when it is necessary to bring all the parties before the court, so that complete justice may be done the defendants, or part of them, by granting them affirmative relief, as well as by granting complainant the relief sought by the bill, a cross bill is necessary. Blythe v. Hinckley, 84 Fed. 233; Erlinger v. Boul, 7 Ill. App. 40.

8 Morton v. New Orleans & S. Ry. Co. & Immigration Ass'n, 79 Ala. 590; Howe v. South Park Com'rs, 119 Ill. 101, 7 N. E. 333; Brinkerhoff v. Franklin, 21 N. J. Eq. 334. See supra, § 708. "Wherever it is necessary to bring all the equities of all the parties fully before the court, that even and complete equity may be done as well in favor of the defendant as of the complainant, it becomes necessary to file a cross bill; and this may be done by any or all of the defendants against any or all of the complainants, or by a defendant against his co-defendants, or a part of them, as the nature of the case may require. Story, Eq. Pl. § 392; Andrews v. Kibbee, 12 Mich. 94, 83 Am. Dec. 766; Farmers & Mechanic's Bank of Michigan v. Bronson, 14 Mich. 371." Feige v. Babcock, 111 Mich. 538, 70 N. W. 7.

4 Langdell, Eq. Pl. § 155, from which the foregoing is taken verbatim; Ward v. Eyles, Mos. 382; Bogle v. Bogle, 3 Allen (Mass.) 158; Bullock v. Brown, 20 Ga. 472; Chicago & G. W. R. Land Co. v. Peck, 112 Ill. 408; Freeland v. South Penn Oil Co., 189 Pa. 54, 41 Atl. 1000.

5 Wing v. Goodman, 75 Ill. 159; Hook v. Richeson, 115 Ill. 431, 5 N. E. 98; Braman v. Wilkinson, 3 Barb. (N. Y.) 151; McDaniel v. Callan, 75 Ala. 327; Buckingham v. Wesson, 54 Miss. 526; American & General Mortg. & Inv. Corp. v. Marquam, 62 Fed. 960; Newberry v.

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§ 889. Matter occurring after cause at issue set up by cross bill. A defendant cannot avail himself, by plea or answer, of a matter of defense which arises after the cause is at issue. He must make such defense the subject of a cross bill.

Thus

Blatchford, 106 Ill. 584; Glenn v. Clark, 53 Md. 580; Weed v. Smull, 3 Sandf. Ch. (N. Y.) 273; Montgomery v. Olwell, 1 Tenn. Ch. 169; Wight v. Downing, 90 Ill. App. 1; Woodard v. Bird, 105 Tenn. 671, 59 S. W. 143. "There are some well-recognized exceptions to this rule, where a defendant may have a decree in his favor without a cross bill, as on a bill for specific performance, where the defendant sets up in the answer and proves an agreement different from the one sought to be enforced; on a bill for accounting, if a balance is found due the defendant; and on a bill for partition, where the defendant claims the same relief as is sought by the original bill." Freeland v. South Penn Oil Co., 189 Pa. 54, 41 Atl. 1000; McClaskey v. Barr, 48 Fed. 130; Story, Eq. Pl. § 394; Coxe v. Smith, 4 Johns. Ch. (N. Y.) 271. A cross bill is not necessary to enable the defendant to avail himself of a setoff in a foreclosure suit. McClaskey v. Barr, 48 Fed. 130; Jennings v. Webster, 8 Paige (N. Y.) 503. The defendant must proceed by cross bill if, in addition to a denial of the decree for partition, and the admission of the bill, he seeks further and affirmative relief on his part, by a decree for the transfer to him of the legal title to the whole premises, or if a discovery is necessary to establish his equitable defense. German v. Machin, 6 Paige (N. Y.) 288; McClaskey v. Barr, 48 Fed. 130. It is held in McClaskey v. Barr, 48 Fed. 130, that when, in a partition suit in the federal court, title to an interest in the rents is established by persons not in possession, and the defendants wish to claim compensation for improvements, such claim must be set up by cross bill. See, for consideration of this question, Griffith v. Security Home Building & Loan Ass'n, 100 Tenn. 410, 45 S. W. 670, citing many authorities.

Story, Eq. Pl. § 393; Blythe v. Hinckley, 84 Fed. 233; Jenkins v. International Bank, 111 Ill. 470; Ferris v. McClure, 36 Ill. 77; Hayne v. Hayne, 3 Ch. R. 19; Nash v. Flyn, 1 Jones & L. 162; Richards v. Bayly, 1 Jones & L. 120; 2 Barbour, Ch. Pr. 128; Cooper, Eq. Pl. 86, 87; Miller v. Fenton, 11 Paige (N. Y.) 18; Burdell v. Burdell, 2 Barb. (N. Y.) 473; Lambert v. Lambert, 52 Me. 544. See supra, § 305. "The chancellor, in Smith v. Smith, 4 Paige (N. Y.) 438, expresses an opinion that the defense may be set up on supplemental answer, but the point was not before him, and his remark was obiter, while, on the other hand, Story and Lord Redesdale, both good authority, lay down the rule as I have stated it." Burdell v. Burdell, 2 Barb. (N. Y.) 473. The fact that complainant has parted with his title to the land since the filing of the answer cannot be brought forward by the defendant by a sup

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