where, in a bill to redeem a mortgage, an assignment of all the interest of the complainant in the premises mortgaged is made after answer filed, the defendant can make such assignment available by a cross bill.7

It seems that, under the English chancery practice, it was not indispensable that a cross bill should be filed in the same court in which the original bill was filed; as, for example, if the original bill had been brought in the court of exchequer, while that court had equity jurisdiction, the cross bill might be brought in the court of chancery.8 Such a practice does not obtain in the United States."

§ 891. Necessity for cross bill.

A cross bill not in the nature of a plea puis darrein continuance is necessary only where the defendant desires some affirmative relief beyond such as would necessarily follow the dismissal of the bill.10 Where the defendant seeks affirmative relief, he must file a cross bill, and an answer will not avail his purpose.11

plemental answer. The proper mode is to file a bill in the nature of a supplemental bill, which is in the nature of a plea puis darrein continuance at common law. Pue v. Pue, 4 Md. Ch. 387.

7 Lambert v. Lambert, 52 Me. 544. See Scott v. Milliken, 60 Ill. 108; Story, Eq. Pl. (9th Ed.) § 399, note (a). See, also, supra, §§ 305, 394. See Hook v. Richeson, 115 Ill. 431, 5 N. E. 98, for consideration of necessity of filing cross bill.

8 Story, Eq. Pl. § 400; Cooper, Eq. Pl. 87; Mitford, Eq. Pl. 80, note; Parker v. Leigh, 6 Madd. 115.

Story, Eq. Pl. § 400; Neal v. Foster, 34 Fed. 496; Carnochan v. Christie, 11 Wheat. (U. S.) 446.

10 Edgerton v. Young, 43 Ill. 464; Pattison v. Hull, 9 Cow. (N. Y.) 747; Nelson v. Lowndes County, 93 Fed. 538; Moran v. Schooling's Adm'r, 29 U. S. App. 71, 64 Fed. 499; Book v. Justice Min. Co., 58 Fed. 827.

11 Tarleton v. Vietes, 6 Ill. 470; McPherson v. Cox, 96 U. S. 404; Ketchum v. Creagh, 53 Ala. 224; Tallman v. Wallack, 54 N. J. Eq. 655, 33 Atl. 1059; Mrzena v. Brucker, 3 Tenn. Ch. 161; Vary v. Shea, 36 Mich. 388; Millsaps v. Pfeiffer, 44 Miss. 805. Where the defendant's

§ 892. Treating answer as cross bill.

In some cases an answer has been allowed to stand as a cross bill, and the practice in some jurisdictions is to file an answer in the nature of a cross bill. It is held that such an answer, after responding to the bill, must state the new matter for affirmative relief with the same particularity and certainty, under the principles of equity pleading, as are required in a formal cross bill stating a case for equitable relief touching the matter in question in the bill, and not one foreign to it, and must name persons interested in this new matter, and make them parties by calling for process against them, and must contain a prayer for relief, as a cross bill would in the case."

§ 893. Decree between co-defendants.

12

Concerning the right of the court to make a decree between co-defendants, it is said that, where a case is made out between defendants by evidence arising from pleadings and proofs between the complainants and the defendants, a court of equity is entitled to make a decree between the defendants, and is bound

case entitles him to affirmative relief, he must file his cross bill, properly framed to meet his case, whether the complainant's bill be retained or dismissed. When the original bill is dismissed, chancery practice does not authorize the court to retain the answer, and, even if it did, specific relief cannot be decreed thereon. McConnel v. Smith, 23 Ill. 611. For illustration of when cross bill is necessary, see Carnochan v. Christie, 11 Wheat. (U. S.) 446; Meissner v. Buek, 28 Fed. 161; Cotton v. Scott, 97 Ala. 447, 12 So. 65; Pike v. Underhill's Adm'r, 24 Ark. 124; Kimberly v. Fox, 27 Conn. 307; Sanford v. Cloud, 17 Fla. 557; Bay v. Shrader, 50 Miss. 326; Duryee v. Linsheimer, 27 N. J. Eq. 366; Ritchie v. McMullen, citing, approvingly, Foster, Fed. Pr. § 172; Hubbard v. Turner, 2 McLean, 519, Fed. Cas. No. 6,819.

12 Martin v. Kester, 46 W. Va. 438, 33 S. E. 238; Goff v. Price, 42 W. Va. 384, 26 S. E. 287; Morgan v. Blatchley, 33 W. Va. 155, 10 S. E. 282. An answer in the nature of a cross bill which sets up no right to any relief, needs no answer. Horton v. Mercier, 31 Ga. 225. For instances of relief held to be proper under an answer, see Northern R. Co. v. Ogdensburg & L. C. R. Co., 18 Fed. 815; Alston v. Alston, 34 Ala. 15; Nyburg v. Pearce, 85 Ill. 393; Redfield v. Gleason, 61 Vt. 220, 17 Atl. 1075, 15 Am. St. Rep. 889. See, for practice in Michigan, Coach v. Adsit, 97 Mich. 563, 56 N. W. 937.

to do so.13 But such a decree between the defendants, to be binding upon them, must be founded upon and connected with the subject-matter in litigation between the complainant and one or more of the defendants.14 It has also been held that, after the parties have had a hearing and an opportunity of asserting their rights, they are concluded by the decree as far as it affects rights presented to the court, and passed upon by its decree, even though all were defendants, and as between them no issue was raised, and no adverse proceedings were had.15

§ 894. Relief sought must be equitable.

A cross bill being generally considered as a defense to the original bill, or as a proceeding necessary to the complete determination of a matter already in litigation, the complainant is not, at least as against the complainant in the original bill, obliged to show any ground of equity to support the jurisdiction of the court.16 Where the cross bill seeks not only a discovery,

18 Louis v. Brown Township, 109 U. S. 162; Corcoran v. Chesapeake & Ohio Canal Co., 94 U. S. 741; Chamley v. Dunsany, 2 Schoales & L. 718; Elliott v. Pell, 1 Paige (N. Y.) 263; Vanderveer v. Holcomb, 17 N. J. Eq. 90; Conry v. Caulfield, 2 Ball & B. 255.

14 Elliott v. Pell, 1 Paige (N. Y.) 263; Vance v. Evans, 11 W. Va. 370. See Hopkins v. Lee, 6 Wheat. (U. S.) 109; Bank of United States v. Beverly, 1 How. (U. S.) 134; Crandall v. Gallup, 12 Conn. 365; Breckenridge's Heirs v. Ormsby, 1 J. J. Marsh. (Ky.) 236.

15 Louis v. Brown Township, 109 U. S. 162; Corcoran v. Chesapeake & Ohio Canal Co., 94 U. S. 741. This rule, however, is not well established, and it is said by other courts, in jurisdictions which have laid down the foregoing rule, that it is settled that one defendant cannot have a decree against a co-defendant without a cross bill with proper prayer and process or answer, as in the original suit. Smith v. Woolfolk, 115 U. S. 143, citing Cullum v. Erwin, 4 Ala. 452; Cummings' Heirs v. Gill's Heirs, 6 Ala. 562; Shelby v. Smith's Heirs & Executors, 2 A. K. Marsh. (Ky.) 504; Walker v. Byers, 14 Ark. 246. See, also, Veach v. Rice, 131 U. S. 293; Commercial Bank of Augusta v. Sandford, 103 Fed. 98.

16 Story, Eq. Pl. § 399; Mitford, Eq. Pl. 81; 2 Barbour, Ch. Pr. 131; Burgess v. Wheate, 1 Eden, 190; Doble v. Potman, Hardres, 160; Nelson v. Dunn, 15 Ala. 501; Davis v. Cook, 65 Ala. 617; Thomason v. Neeley, 50 Miss. 310; Sterl v. Sterl, 2 Ill. App. 223; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250. See Whittemore v. Patten, 84 Fed. 51;

but relief, care should be taken that the relief prayed by the cross bill should be equitable relief, for to this extent it may be considered as not purely a cross bill, but in the nature of an original bill, seeking further aid from the court, and then the relief ought to be such as, in point of jurisdiction, it is competent for the court to give.17 A cross bill will be open to a demurrer when it seeks relief which is of an equitable nature, and does not contain all the proper allegations which confer an equitable title to such relief upon the parties.18

§ 895. Cross bill must be germane to original bill.

It is a well-settled rule of chancery practice that matters sought to be investigated by cross bill must be germane to the subject involved in the original bill. New and distinct matters, not embraced in the original suit, should not be introduced.19 A cross bill must grow out of the matters alleged in the original bill, and is used to bring the whole dispute before the court, so that there may be a complete decree touching the subject-matter of the suit.20 But it is not essential that the

North British & Mer. Ins. Co. v. Lathrop, 70 Fed. 429, citing, approvingly, Washington R. R. v. Bradleys, 10 Wall. (U. S.) 299, and Beach, Mod. Eq. Pr. § 125.

17 Mitford, Eq. Pl. 81; 2 Barbour, Ch. Pr. 131; Story, Eq. Pl. § 398; Tobey v. Foreman, 79 Ill. 489; Calverley v. Williams, 1 Ves. Jr. 211; Griffin v. Fries, 23 Fla. 173, 2 So. 266, 11 Am. St. Rep. 351; Ray v. Home & Foreign Investment & Agency Co., 106 Ga. 492, 32 S. E. 603.

18 Story, Eq. Pl. § 630; Tobey v. Foreman, 79 Ill. 489; Mason v. Gardiner, 4 Brown, Ch. 436; Benfield v. Solomons, 9 Ves. 84; Lautz v. Gordon, 28 Fed. 264; Trapnall v. Hill, 31 Ark. 345; Hughey v. Bratton, 48 Ark. 167, 2 S. W. 698; Wright v. Frank, 61 Miss. 32.

19 Story, Eq. Pl. § 401; Galatian v. Erwin, Hopk. Ch. (N. Y.) 48; Rowan v. Sharp's Rifle Mfg. Co., 33 Conn. 1; 2 Barbour, Ch. Pr. 130; Ayres v. Carver, 17 How. (U. S.) 591; Hackley v. Mack, 60 Mich. 591, 27 N. W. 871; Hogg v. Hoag, 107 Fed. 807; Wight v. Downing, 90 Ill. App. 1; Ray v. Home & Foreign Investment & Agency Co., 106 Ga. 492, 32 S. E. 603; Thruston v. Big Stone Gap Imp. Co., 86 Fed. 484; Springfield Milling Co. v. Barnard & Leas Mfg. Co., 49 U. S. App. 438, 81 Fed. 261. 20 Davis v. American & Foreign Christian Union, 100 Ill. 313, citing Story, Eq. Pl. § 401; Gilmer v. Felhour, 45 Miss. 627; Pindall v. Trevor, 30 Ark. 249; Kingsbury v. Buckner, 134 U. S. 650; Beck v. Beck, 48

facts showing a right to relief sought by one defendant against another should appear from the original bill.21 While the allegations of the cross bill must relate to the subject-matter in controversy on the original bill, they are not restricted to the issues in the original cause.22 The complainant in such bill should not contradict the assertions in his answer in the original suit.23

§ 896. Effect of filing cross bill where original bill lacks equity.

Where the original bill lacks equity because there is an adequate remedy at law, a cross bill containing matters of equitable cognizance may cure the defect; but where the cross bill only seeks such relief as can be had at law, it does not cure such defect.24

§ 897. Who may file cross bill.

A cross bill may be filed by all or any of the defendants against all or any of the complainants, or by a part of the de

N. J. Eq. 39, 10 Atl. 155; Slason v. Wright, 14 Vt. 208; Riggs v. Armstrong, 23 W. Va. 760; Krueger v. Ferry, 41 N. J. Eq. 432, 5 Atl. 452; Blythe v. Hinckley, 84 Fed. 233.

21 Dawson v. Vickery, 150 Ill. 398, 37 N. E. 910; Robins v. Swain, 68 Ill. 197.

22 Hurd v. Case, 32 Ill. 45, 83 Am. Dec. 249; Follansbee v. ScottishAmerican Mortgage Co., 7 Ill. App. 486; Nelson v. Dunn, 15 Ala. 501. See Cartwright v. Clark, 4 Metc. (Mass.) 104; Carnochan v. Christie, 11 Wheat. (U. S.) 466; Cross v. De Valle, 1 Wall. (U. S.) 5; May v. Armstrong, 3 J. J. Marsh. (Ky.) 260.

23 Hudson v. Hudson, 3 Rand. (Va.) 117; Dill v. Shahan, 25 Ala. 694, 60 Am. Dec. 540; Jackson v. Grant, 18 N. J. Eq. 145; Draper v. Gordon, 4 Sandf. Ch. (N. Y.) 210; Ragor v. Brenock, 175 Ill. 494, 51 N. E. 888.

24 Sale v. McLean, 29 Ark. 612; Wachter v. Blowney, 104 Ill. 610; Beach, Mod. Eq. Pr. § 425; Houston v. Maddux, 179 Ill. 377, 53 N. E. 599. See, also, Cockrell v. Warner, 14 Ark. 358. See, however, Loomis v. Freer, 4 Ill. App. 547, and Dows v. City of Chicago, 11 Wall. (U. S.) 108, holding that, where the original bill is dismissed for want of jurisdiction, the cross bill must follow the fate of the original bill. See, also, Dill v. Shahan, 25 Ala. 694; Carroll v. Richardson, 87 Ala. 605, 6 So. 342.