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.1

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, 43

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.

28 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.

fendants against the complainants, or part of them, and also against co-defendants, or a part of them, as the nature of the case may require. 25 It is a general rule that a cross bill cannot be filed by any persons except parties to the original suit.26 It is held in Illinois that a party brought in as defendant to a cross bill may in turn exhibit his cross bill, where it is proper for the purposes of doing complete justice and terminating the litigation.27

$ 898. Parties defendant.

Parties defendant are as necessary to cross bills as to original bills.28 The complainant in the original suit should be made a defendant to the cross bill in all cases.29 In some jurisdictions it is held that persons not parties to the original bill may be brought into the litigation by means of a cross bill.30

25 Mitford, Eq. Pl. 81; Ballance v. Underhill, 4 Ill. 453; 1 Smith, Ch. Pr. 459; Jones v. Smith, 14 Ill. 229; Fletcher v. Wilson, Smedes & M. Ch. (Miss.) 376.

26 Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106; Payne v. Cowan, Smedes & M. Ch. (Miss.) 26. See Mutual Life Ins. Co. v. Cokefair, 41 N. J. Eq. 142, 3 Atl. 686. But it is said that a purchaser pendente lite from a party to the suit may file a bill in the nature of a cross bill, to make himself a party to the suit, so as to have his rights protected. Whitbeck v. Edgar, 2 Barb. Ch. (N. Y.) 106. Under the practice in the federal courts, one claiming an interest in the subject of litigation cannot properly be made a party 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, 33 U. S. App. 76, 67 Fed. 837.

27 Blair v. Illinois Steel Co., 159 Ill. 350, 42 N. E. 895.

28 Washington A. & G. R. Co. v. Bradleys, 10 Wall. (U. S.) 299.

29 Cooper, Eq. Pl. 45; 2 Daniell, Ch. Pl. & Pr. (5th Ed.) 1548, 1549. See Putnam v. New Albany, 4 Biss. 465, Fed. Cas. No. 11,481; Cox v. Price (Va.) 22 S. E. 512; Cleveland v. Chamblis, 64 Ga. 352.

30 Jones v. Smith, 14 Ill. 229; Hurd v. Case, 32 Ill. 45; Blodgett v. Hobart, 18 Vt. 414; Brandon Mfg. Co. v. Prime, 14 Blatchf. 371, Fed. Cas. No. 1,810, and authorities therein cited; Kanawha Lodge v. Swann, 37 W. Va. 176, 16 S. E. 462; Green v. Stone, 54 N. J. Eq. 401, 34 Atl. 1099; Haberman v. Kaufer, 60 N. J. Eq. 271, 47 Atl. 48; Curd v. Lewis, 1 Dana (Ky.) 351; Wickliffe v. Clay, 1 Dana (Ky.) 585; Sharp v. Pike's Adm'r, 5 B. Mon. (Ky.) 155; Coster's Ex'rs v. Bank of Georgia, 24 Ala. 37. It is not introducing new and independent matter into the cross

In other jurisdictions it is held that new parties cannot be introduced by cross bill.31 If the interests of the defendant be such that it is necessary for him to raise issues not within the scope of the complainant's bill, but which are essential to the establishment of his rights, and to that end new parties must necessarily be brought into the litigation, he cannot raise such issues by cross bill, but must file an original bill.32

$899. Filing the cross bill.

The practice relative to the necessity of obtaining leave to file a cross bill is not uniform. In some jurisdictions, leave to file a cross bill is a matter in the discretion of the court.33 The

bill, and new parties for the purpose of answering that matter, but it is presenting new facts connected with the subject-matter of the original bill, and answering it, and new parties whose interests may be likewise affected by the new allegations. Jones v. Smith, 14 Ill. 229.

31 Shields v. Barrow, 17 How. (U. S.) 130; Richman v. Donnell, 53 N. J. Eq. 32, 30 Atl. 533; Bishop v. Miller, 48 Miss. 364; Oswald v. Givens, 11 Rich. Eq. (S. C.) 132; Cobb v. Baxter, 1 Tenn. Ch. 405; Thruston v. Big Stone Gap Imp. Co., 86 Fed. 484. The case of Shields v. Barrow, 17 How. (U. S.) 130, which has been followed in some jurisdictions, is considered in Brandon Mfg. Co. v. Prime, 14 Blatchf. 371, Fed. Cas. No. 1,810, and its expression to the effect that persons not parties to the original bill cannot be brought into the litigation by means of a cross bill said to be mere dictum. See Derbyshire v. Jones, 94 Va. 140, 26 S. E. 416, considering the division of opinion on this subject.

82 Richman v. Donnell, 53 N. J. Eq. 32, 30 Atl. 533, citing Shields v. Barrow, 17 How. (U. S.) 129. See McGavock v. Morrison, 3 Tenn. Ch. 355, considering the practice in Tennessee.

33 Finlayson v. Lipscomb, 16 Fla. 751; Bronson v. La Crosse & M. R. Co., 2 Wall. (U. S.) 283; Indiana Southern R. Co. v. Liverpool, L. & G. Ins. Co., 109 U. S. 168; Brooks v. Moody, 25 Ark. 452; Brown v. Bell, 4 Hayw. (Tenn.) 288; Baker v. Oil Tract Co., 7 W. Va. 454. It is held that a cross bill may be filed without leave of court, and the question of the right to file it may be made on demurrer. Neal v. Foster, 84 Fed. 496. In Illinois it is provided by statute: "Any defendant may, after filing his answer, exhibit and file his cross bill, and call upon the complainant to file his answer thereto, in such time as may be prescribed by the court." Rev. St. Ill. c. 22, § 30. It is held that the filing of a cross bill is a matter of right, and requires no leave of court. Beauchamp v. Putnam, 34 Ill. 378; Davis v. American & Foreign Christian Union, 100 Ill. 313. See Quick v. Lemon, 105 Ill. 578. Where a party wishes to file a cross bill, he should do so without

time when a cross bill may be filed is usually regulated by statute or rule of court. As a general rule, the proper time, where such a bill is necessary, is at the time of putting in an answer to the original suit, and before issue is joined by filing the replication.34 Where a cross bill is not filed until after the original suit is at issue, the complainant in such cross bill will not be entitled to an order staying proceedings in the original suit, without showing some excuse for the failure to file the cross bill before the original suit was at issue.35 The rule that

delay. If time is required after the filing of the answer, it should be asked for. Whero the cross bill is filed after the hearing, and without leave, it should be stricken from the files. Fread v. Fread, 61 Ill. App. 586; Maher v. Bull, 39 Ill. 531. "It was not necessary to give notice of the application for leave to file a cross bill; nor, so far as I am advised, to obtain leave before doing so. The only case I have found on the subject is Bronson v. La Crosse & M. R. Co., 2 Wall. (U. S.) 283. There a cross bill filed without leave of the court was set aside as irregular; but it was filed by a person not a party to the suit, who petitioned the court for leave to answer for a defendant corporation, then in default, of which he was a stockholder, and also to file a cross bill. Leave was given to file the answer, but as to the cross bill the order of the court was silent. The party filed the answer for the corporation, and also a cross bill, which was subsequently set aside because filed without leave, by a stranger to the suit. A cross bill is a regular and legitimate proceeding in a court of equity, to which any party defendant may resort in a proper case without any special leave of the court; but in doing so he must conform to the law. or rule which governs the case, or take the consequence. Story says (Eq. Pl. § 632): ‘A cross bill will be open to a demurrer if it is filed contrary to the practice of the court, and under circumstances in which a pure cross bill is not allowed.'" Neal v. Foster, 34 Fed. 496.

34 2 Barbour, Ch. Pr. 129; Josey v. Rogers, 13 Ga. 478; Irving v. De Kay, 10 Paige (N. Y.) 319. See United States Equity Rule 72. 35 2 Barbour, Ch. Pr. 129. It is not too late to file a cross bill after proofs in the original suit are closed, if complainant in the cross bill elects to have a hearing on bill and answer as to the cross bill. White v. Buloid, 2 Paige (N. Y.) 164. Under the chancery practice formerly obtaining in New York, it was held that a cross bill should be filed before publication had passed in the first cause. Sterry v. Arden, 1 Johns. Ch. (N. Y.) 62; Gouverneur v. Elmendorf, 4 Johns. Ch. (N. Y.) 357; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250. See Cook v. Broomhead, 16 Ves. 133; Dalton v. Carr, 16 Ves. 93. It is held in the federal courts that a cross bill not seeking to introduce new testimony