original suit, unless the plaintiff in the cross-bill will go to the hearing upon the proofs already published.1

Upon hearing a cause, it sometimes appears, that the suit already instituted is insufficient to bring before the Court all matters necessary to enable it fully to decide upon the rights of all the parties.2 This most frequently happens where persons in opposite interests are co-defendants, so that the Court cannot determine their opposite interests upon the bill already filed, and the determination of their interests is yet necessary to a complete decree upon the subject-matter of the suit. In such a case, if upon hearing the cause the difficulty appears, and a cross-bill has not been exhibited to remove the difficulty, the Court will direct a bill to be filed, in order to bring all the rights of all the parties fully and properly for its decision, and will reserve the directions or declarations, which it may be necessary to give or make touching the matter not fully in litigation by the former bill, until this new bill is brought to a hearing.3

And if a creditor, who has come in under a decree in favor of creditors against a debtor, should require relief, for the purpose of assisting the investigation of demands affecting the estate, before the Master, which relief cannot be obtained under the original bill, or by a rehearing, he may, even without the direction of the Court, file a cross-bill for the purpose; for he might not have had an opportunity, at an earlier stage of the proceedings, of presenting his case and his objections.5

A cross-bill is prepared and signed by counsel, and engrossed and filed, in the same manner as an original bill. It seems, that in England, it is not indispensable, that a cross-bill should be filed in the same Court in which the original bill is filed; as for exam

1 See also to same point and effect, Field v. Schieffelin, 7 John. Ch. 252; Gouverneur v. Elmendorf, 4 John. Ch. 357; Sterry v. Arden, 1 John. Ch. 62; Story Eq. Pl. § 395; White v. Buloid, 2 Paige, 164.

Field v. Schieffelin, 7 John. Ch. 252; Story Eq. Pl. § 396; Cartwright v. Clark, 4 Metcalf, 104.

Mitf. Eq. Pl. by Jeremy, 82, 83; 1 Smith Ch. Pr. (2d Am. ed.) 460; Story Eq. Pl. § 396; Field v. Schieffelin, 7 John. Ch. Cowen, 747; Cartwright v. Clark, 4 Metcalf, 104. by the Court, a cross-bill cannot be filed after the Roberts v. Peavey, 9 Foster (N. H.) 392.

253, 254; Pattison v. Hull, 9 And generally, unless directed hearing on the original bill.

ple, if the original bill had been brought in the Court of Excheq uer, whilst that Court had Equity jurisdiction, the cross-bill might be brought in the Court of Chancery.1

Whether the like doctrine is maintainable in the Courts of America may admit of a question. But, at all events, there cannot be a cross-bill in a State Court to an original bill pending in the Circuit Court of the United States. If any cross-bill is wanted in such a case, it should be brought in the same Circuit Court in which the original bill is depending, as it is not an original, but an ancillary suit.2

A cross-bill should state the original bill and the proceedings thereon, and the rights of the party exhibiting the bill, which are necessary to be made the subject of cross-litigation, or the ground, on which he resists the claims of the plaintiff in the original bill, if that is the object of the new bill.3

It must be confined to the subject-matter of the original bill, and cannot introduce new and distinct matters not embraced in the original suit, and if it do so, no decree can be founded on those matters, for, as to such matters, it is an original bill, and they cannot properly be examined at the hearing of the first suit.

The plaintiff in a cross-bill cannot contradict the assertions in his answer in the original suit. And where the allegations of a cross-bill are inconsistent with the admissions of the answer to the original bill, they cannot be taken as true though unanswered.

A demurrer was allowed to a cross-bill to have usurious secu

1 Cooper Eq. Pl. 87; Glegg v. Leigh, 4 Madd. 192; Parker v. Leigh, 6 Madd. 115; Story Eq. Pl. § 400, (3d ed.) note (4).

3

2 Story Eq. Pl. § 400.

Ib.; Mitf. Eq. Pl. by Jeremy, 81; Story Eq. Pl. § 401. See Allen e. Allen, 14 Ark. (1 Barb.) 666.

The Statute of Mississippi authorizing a defendant to make his answer a crossbill against the plaintiffs or his co-defendants, or all of them, "upon which no subpœna shall be required to issue, unless new parties are introduced," enables the defendant to make co-defendants to the original bill defendants to the cross-bill without notice by process, but does not authorize the introduction of persons not parties to the suit. Lardner v. Ogden, 31 Miss. (2 George) 332.

May v. Armstrong, 3 J. J. Marsh. 262; Daniel v. Morrison, 6 Dana, 185; Galatian v. Erwin, 1 Hopk. 48; S. C. 8 Cowen, 361; Josey v. Rogers, 13 Geo. 478; Andrews v. Hobson, 23 Ala. 219.

7 Savage v. Carter, 9 Dana, 414. See Dill v. Shahan, 25 Ala. 694.

rities delivered up, because it did not offer to pay the sum really due.1

But as a cross-bill is considered a mode of defence, or a proceeding to procure a complete determination of a matter already in litigation in the Court, the plaintiff is not, at least, as against the plaintiff in the original bill, obliged to show any ground of Equity to support the jurisdiction of the Court.2 It is treated, in short, as a mere auxiliary suit, or as a dependency upon the original suit.3

Whenever a cross-bill is brought against co-defendants in a suit, the plaintiff in such suit must be named a defendant together with them.4

In New York, if the plaintiff in a cross-bill wishes an order to stay proceedings in the original suit, the cross-bill must be verified by some person, who knows the facts,5 and a certificate of counsel should be obtained, stating that he believes a stay of proceedings, in the original suit, to be necessary for the attainment of justice in the cause, and that the cross-bill is not intended for delay.6

The appearance of the defendant to a cross-bill is enforced in the same manner as to an original bill, by subpoena, a copy of which writ is served either personally on the defendant, or by leaving the same at his dwelling-house. An order for substituted service, of the subpoena to appear, on the clerk in Court, or solicitor concerned for the plaintiff in the original suit, is irregular, there being no analogy between the case of a defendant to a cross-bill, and that of a defendant to a bill in Equity to stay proceedings at law, in which proceedings at law, the defendant is a plaintiff.8

The first peculiarity in the proceedings of a cross-bill is, that the plaintiff in the original cause is entitled to have an answer to his 1 Mason v. Gardiner, 4 Bro. C. C. (Perkins's ed.) 436. See also ib. 438, note (a).

Cartwright v. Clark, 4 Metcalf, 104; Story Eq. Pl. § 399; Mitf. Eq. Pl. by Jeremy, 81, 82; Burgess v. Wheate, 1 Eden, 190; Doble v. Potman, Hardr. 160; Kemp v. Mackrell, 3 Atk. 812; Nelson v. Dunn, 15 Ala. 501.

* 7 Story Eq. Pl. § 339; Slason v. Wright, 14 Vermont, 208.

* Cooper Eq. Pl. 85.

⚫ Talmadge v. Bell, 9 Paige, 410.

8

White v. Buloid, 2 Paige, 164.

1 Smith Ch. Pr. (2d Am. ed.) 461. See Anderson v. Ward, 5 Monroe,

1 Smith Ch. Pr. (2d Am. ed.) 461, and note (1); Hoff. Ch. Pr. 355.

bill before he can be compelled to answer the cross-bill.1 To sustain this privilege, however, the plaintiff in the original suit must obtain an order for the purpose, which allows him a certain time to answer the cross-bill, after the defendant, in the original cause, has put in his answer to the original suit. This order may be ob tained, although the plaintiff in the cross-cause may be in a situation to enforce an answer first; and it was in Harris v. Harris, granted to the plaintiff in the original cause, notwithstanding he, as defendant to the cross-cause, had obtained an order for time to answer. Unless this order is obtained and served, the plaintiff in the cross-cause is at liberty to enforce an answer to his bill, by process of contempt, and thus altogether to deprive the first plaintiff of his priority of right to an answer. In Turner v. Hill, and Hill v. Turner, the answer to the original bill was reported insufficient, and the plaintiff obtained an order to amend, and for the defendant to answer the amendments and exceptions at the same time. The defendant then filed a cross-bill. On the 6th of November, the plaintiff in the original suit obtained an order, that he should have a fortnight's time to answer the cross-bill, after answer to the original bill. Before the order was served on the defendant Hill, he issued an attachment against Turner for want of answer to the cross-bill. On the application of defendant Hill, the order of 6th of November was discharged."

At the expiration of the time allowed to answer the cross-bill after the original bill has been answered, the plaintiff in the crosssuit is entitled to an answer to his bill, and the defendant in the cross-suit is not entitled as of course to any further time."

The priority of answer, to which the original plaintiff is entitled, extends as against those, who claim as representatives of the

By a rule of the Supreme Court of the United States, where a defendant in Equity files a cross-bill for discovery only against the plaintiff in the original bill, the defendant to the original bill shall first answer thereto, before the original plaintiff shall be compelled 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. Equity Rule 72.

Turn. & Russ. 165.

$ 1 Smith Ch. Pr. (2d Am. ed.) 461, 462. • Ib. 462.

5 Cited 1 Smith Ch. Pr. (2d Ẩm. ed.) 462.

1 Smith Ch. Pr.. (2d Am. ed.) 462, 463.

See Noel v. King, 3 Mad. 183; 1 Smith Ch. Pr. (2d Am. ed.) 463.

plaintiffs, or one of them, in the cross-cause.

Thus in a case,

where A brought his bill against B and C, who put in insufficient answers, and preferred their cross-bill against A; after which B became a bankrupt, and his assignees brought a bill in the nature of a bill of revivor against A; the Court held, that the assignees of B should not go on till C had answered A's bill.1

The priority of answer, allowed to the plaintiff in the original cause, may be waived and transferred to the plaintiff in the crosscause, by the plaintiff's amending his original bill in matters material2 after the filing of the cross-bill.3

The proceedings in the original suit are not stayed merely by the amendment, but the plaintiff in the cross-bill, upon material 5 amendments being made, must obtain an order, that the proceedings in the original bill be stayed until the plaintiff shall have fully answered the cross-bill.6

If such order is not obtained, the plaintiff in the original cause is warranted in issuing an attachment for want of an answer, and otherwise proceeding with his original suit. This last order, giving a priority of answer to the plaintiff in the cross-cause, may be obtained either upon a petition or a motion as of course.8

The reason why the plaintiff in the original cause loses his priority, is, that the amended bill, as to the amendments, is a new bill, and the cross-bill being filed prior to the amendments, and the original and amended bill being considered as one record, the priority of answer is lost as to the whole.9

The general rule, that the plaintiff in the original suit loses his priority of answer, by materially amending the original bill, is not varied although the defendant has put in an insufficient answer, and although the order to amend is made on the terms, that the defendant may answer the amendments and exceptions together.10 1 Child v. Frederick, 1 P. Wms. 266.

So, it seems, though the amendment is in matter immaterial. Johnson v. Freer, 2 Cox, 371; Noel v. King, 2 Madd. 394.

Steward v. Roe, 2 P. Wms. 435.

Noel v. King, 2 Madd. 394.

So, it seems, though the amendment is in matter immaterial. Johnson v. Freer, 2 Cox, 371; Noel v. King, 2 Madd. 394.

Noel v. King, 2 Madd. 394.

Ibid.

1 Smith Ch. Pr. (2d Am. ed.) 464.

Steward v. Roe, 2 P. Wms. 434.

10 Meade v. Duchess of Buckingham, cited 1 Smith Ch. Pr. (2d Am. ed.) 464.