ters and rights distinct from matters in litigation in the original suit, it is demurrable.54 A cross bill also will be open to demurrer if it is filed contrary to the practice of the court, and under circumstances in which a pure cross bill is not allowed.55 A cross bill filed by the special direction of the court to obtain its decree touching some matter not in issue by the former bill, or not in issue between the proper parties, does not seem, it is said, liable to any peculiar cause of demurrer.56 There is little probability that it would be liable in substance to any demurrer.5

57

§ 906. Pleas to cross bill.

Cross bills are generally liable to all the pleas in bar to which original bills are liable, as they differ in nothing from the original bills, except that they are occasioned by former bills; and the converse of this is equally true, that a cross bill is not generally liable to any plea which will not hold to an original bill.58 Pleas to the jurisdiction and to the person cannot be pleaded to a cross bill, the defendant having, by filing his original bill, affirmed the sufficiency, both of the person and of the jurisdiction.59 But if a cross bill is filed by a person incapable alone to institute a suit, it would seem that a plea to the person would be good. 60. A defendant cannot, by cross bill, compel the complainant in the original suit to make a discovery of his, the defendant's, title, and it would seem that the objection may be taken by plea and it may also be insisted on by answer.61

84 Story, Eq. Pl. § 631; 2 Barbour, Ch. Pr. 133.

56 Story, Eq. Pl. § 632; Berkley v. Ryder, 2 Ves. Sr. 533. See White v. Buloid, 2 Paige (N. Y.) 164.

56 Story, Eq. Pl. § 633; 2 Barbour, Ch. Pr. 133.

57 2 Barbour, Ch. Pr. 133; Story, Eq. Pl. § 633; Mitford, Eq. Pl. 203.

58 Story, Eq. Pl. § 832; 2 Barbour, Ch. Pr. 132, 133; Cooper, Eq. Pl. 304; Mitford, Eq. Pl. 290, 291; Beames, Pleas in Eq. 802, 803.

59 Story, Eq. Pl. § 832; 2 Barbour, Ch. Pr. 132; Cooper, Eq. Pl. 304: Mitford, Eq. Pl. 290, 291; Beames, Pleas in Eq. 802, 803.

60 Story, Eq. Pl. § 832; 2 Barbour, Ch. Pr. 132.

61 2 Barbour, Ch. Pr. 132; Story, Eq. Pl. § 832; Bellwood v. Wetherell,

8907. Answer.

By the English practice, the complainant in the original suit had the right to the first answer, and might move to stay proceedings in the cross cause until the original bill was answered.62 The complainant to an original bill does not waire his right to an answer by getting an order for time to answer the cross bill. An answer to a cross bill filed by a person not named in the bill nor admitted as a defendant will be stricken from the files." 64

63

§ 908. Abatement of original suit.

If an original bill is abated by the marriage of a complainant and a cross bill is then filed, the priority of the original bill is lost.65

§ 909. Staying proceedings on original bill.

The filing of a cross bill does not necessarily stay the hearing upon the original bill.66 The complainant in the original bill is not obliged, in any case, to stay proceedings thereon upon the filing of a cross bill, except by a special order of the court." It is not a matter of course for the court to stay the proceedings on the original bill in any case except where the defendant in

1 Younge & C. 211; Glegg v. Legh, 1 Bligh (N. S.) 302; Cherry v. Legh, 1 Bligh (N. S.) 306. See, also, Welford, Eq. Pl. 230.

62 2 Barbour, Ch. Pr. 134; Harris v. Harris, Turn. & R. 165. See United States Equity Rule 72. In determining the sufficiency of the answer to a cross bill, the allegations of the original bill are to be considered therewith. McIlvain v. Southwestern Market Co., 10 Phila. (Pa.) 371, 32 Leg. Int. (Pa.) 464. See, also, Hudson v. Hudson, 3 Rand. (Va.) 117; Savage v. Carter, 7 Dana (Ky.) 414.

63 2 Barbour, Ch. Pr. 134;

v. Southall, Younge, 330.

64 Putnam v. New Albany, 4 Biss. 365, Fed. Cas. No. 11,481. Where an amended answer is filed after a cross bill, the latter must be first answered. Scales v. Nichols, 3 Hayw. (Tenn.) 229.

65 2 Barbour, Ch. Pr. 135; Smart v. Floyer, 1 Dickens, 260.

66 2 Barbour, Ch. Pr. 134; Phillips v. Edsall, 127 Ill. 535, 20 N. E.

801; Wiley v. Platter, 17 Ill. 538; Williams v. Carle, 10 N. J. Eq. 543.

67 2 Barbour, Ch. Pr. 134.

the cross suit is in contempt for not answering. If the complainant in the cross bill wishes to stay the proceedings in the original suit, the cross bill should be filed on oath, and a showing made of the necessity for the stay, and notice given of the application therefor.69 All the complainants in the cross bill must join in this application.70 When there has been a want of diligence on the part of a defendant, and the original bill is ready for hearing, the defendant cannot interpose a cross bill, and insist, as a matter of right, upon the postponement of the hearing of the original bill.71 The court, under special circumstances, and for the purpose of finally settling the rights of parties arising out of the matters of the original suit, at any time before final decree may allow, or even direct, a cross bill to be filed, and continue the original bill for issue and proofs under the cross bill.72

§ 910. Form of order to stay proceedings in original suit.

[Title of court and causes.]

On reading and filing the cross bill of C. D. to the bill of complaint of A. B., and on motion of G. H., solicitor for said C. D., and on hearing the solicitor for the said A. B. in opposition thereto, and the court being fully advised in the premises,

It is ordered that all proceedings in the original suit, commenced by the said A. B. against the said C. D., be stayed until the said A. B. shall have put in his answer to the cross bill filed against him by the said C. D.

68 2 Barbour, Ch. Pr. 134; White v. Buloid, 2 Paige (N. Y.) 164; Farmers' Loan & Trust Co. v. Seymour, 9 Paige (N. Y.) 538.

69 Cartwright v. Clark, 4 Metc. (Mass.) 104; Griswold v. Simmons, 50 Miss. 137; White v. Buloid, 2 Paige (N. Y.) 164; Talmage v. Pell, 9 Paige (N. Y.) 410; 2 Barbour, Ch. Pr. 134.

70 Talmage v. Pell, 9 Paige (N. Y.) 410.

71 Phillips v. Edsall, 127 Ill. 535, 20 N. E. 801; Wiley v. Platter, 17 Ill. 538.

72 Wiley v. Platter, 17 Ill. 539, citing 2 Barbour, Ch. Pr. 129, 130; Story, Eq. Pl. §§ 395, 396; 1 Smith, Ch. Pr. 460; 1 Hoffman, Ch. Pr. 352, 353; White v. Buloid, 2 Paige (N. Y.) 164; Gouverneur v. Elmendorf, 4 Johns. Ch. (N. Y.) 357; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 250; Brush Electric Co. v. Brush-Swan Electric Light Co., 43 Fed. 701; Stevens' Ex'x v. Stevens' Ex'rs, 24 N. J. Eq. 77, 574; Scott v. Grant, 10 Paige (N. Y.) 485; Cartwright v. Clark, 4 Metc. (Mass.) 104.

§ 911. Hearing upon cross bill.

After both causes are at issue, or in a situation to be heard, the complainant in a cross suit may have an order that they be heard together; but the delay of the complainant in the cross suit will not be permitted to delay the hearing of the original cause. 73 It is not, however, absolutely necessary that the original bill and cross bill be heard together. Thus, where a cross bill has been filed and demurred to on the ground that the cross bill fails to present upon its face sufficient grounds for affirmative relief, it is not error for the court to proceed to a hearing of the original cause without regarding the cross bill or disposing of the demurrer thereto.74 The complainant in the cross cause must have it ready to be heard when the original cause comes on for hearing, or procure a stay of proceedings, if he desires that the two causes shall be heard together.75 Where, upon a hearing of the whole case, the matter presented by the original bill is not ready to be disposed of, but that presented by the cross bill is ready, and is so remotely connected with the original cause as to admit of full determination without affecting the original cause, a decree can be entered on the cross bill, and the original cause held open for further adjudication.76 Where a cross bill seeks affirmative relief with respect to matters germane to the bill, and the controversy has taken such a shape that a complete and final determination of the whole case as to all the parties to the original bill may be heard upon the lines of the cross bill, a final decree may be entered upon that bill.77

§ 912. Form of order that original and cross bills be heard to

gether.

[Title of court and causes.]

On reading and filing affidavits showing that both the above-entitled

78 2 Barbour, Ch. Pr. 135; White v. Buloid, 2 Paige (N. Y.) 164; Jones v. Hillis, 91 Ill. App. 403.

74 Crabtree v. Levings, 53 Ill. 526.

75 Beauchamp v. Putnam, 34 Ill. 378.

78 Carroll v. Taylor, 102 Tenn. 451, 52 S. W. 139; Cocke v. Trotter,

10 Yerg. (Tenn.) 213.

77 Blythe v. Hinckley, 84 Fed. 233.

causes are at issue, and ready for hearing, and on motion of J. E., solicitor for C. E., the complainant in the cross bill,

It is ordered that the said causes be brought on for hearing together; provided that the hearing upon the original bill shall not be delayed by any delay or neglect to proceed on the part of the complainant in the said cross bill.

§ 913. Evidence.

Under the English practice, when secret examinations prevailed, evidence in a cross cause, taken after publication in the original cause, could not be read at the hearing to any point to which testimony had been taken in the latter.78 Upon bill and cross bill, where there are the same parties, and the evidence is applicable to the issues in both suits, in a hearing upon the cross bill the testimony taken in the original suit will be admitted. The court, however, will not permit testimony taken in the original suit not relevant to the issue in that suit to be read, although it is relevant to the issue made by the pleadings to the suit on the cross bill.79 A party may obtain an order that

78 2 Barbour, Ch. Pr. 135; Field v. Schieffelin, 7 Johns. Ch. (N. Y.) 252; White v. Buloid, 2 Paige (N. Y.) 164; Neal v. Foster, 34 Fed. 496; Wilford v. Beaseley, 3 Atk. 501; Taylor v. Obee, 3 Price, 26. See United States Equity Rule 72 for practice in federal courts.

70 Holcombe v. Holcombe's Ex'rs, 10 N. J. Eq. 284; Underhill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 355. See, also, Lubiere v. Genou, 2 Ves. Sr. 579. Where a plea of a former adjudication is filed in bar to a cross bill, and the complainant in the cross bill fails to reply thereto, and thereby admits the truth of the facts set up in the plea, the only question in the cause being set for hearing on the plea is its sufficiency, and evidence offered in support of the cross bill is properly excluded as irrelevant. Knowlton v. Hanbury, 117 Ill. 471, 5 N. E. 581. See 1 Barbour, Ch. Pr. 120; State of Rhode Island v. State of Massachusetts, 14 Pet. (U. S.) 210. If a cross bill contains a charge of fraudulent misconduct in arbitrators, but no such allegation is made in the answer to the original bill, though, by a general order of the court, the depositions taken in the original suit are allowed to be read in the cross suit, yet such parts of those depositions as relate to the fraudulent misconduct, not charged in the original suit in which they were taken, will be suppressed. Underhill v. Van Cortlandt, 2 Johns. Ch. (N. Y.) 339.