a cross bill. Thus it is held that, under section 4918 R. S., a defendant against whom a suit for infringement is brought can, upon answer only, obtain a decree declaring the invalidity of the plaintiff's patent and the validity of his own.22 § 1028. Necessity for Cross Bill as Affected by Failure of Plaintiff to Object. It has sometimes been supposed that affirmative relief may be granted on a prayer in the answer alone, where no objection is made; in other words, that a cross bill may be waived.23 But this is going too far. The better rule is that if no cross bill is filed, the relief granted to a defendant cannot ordinarily go beyond such relief as is incident to the proper disposal of the matters contained in the bill.24 § 1029. Discretion of Appellate Court to Dispense with Cross Bill. The appellate courts are undoubtedly loath to reverse a decree that is found to be correct in point of merit, when the only objection to the form of the proceedings in the court below is found in the fact that a cross bill was not filed. The objection is a technical one, and it will not be sustained if the courts can evade the necessity of so doing, without clearly violating principle. But it would certainly be unsafe to presume on this leniency; and the cases in which it has been displayed are not to be considered precedents. They merely show what the appellate courts can do as a matter of discretion, not what they certainly concede to a litigant as a matter of right. 1. Walden v. Bodley (1840) 14 Pet. 156, 10 L. ed. 398: In this case affirmative relief was in effect granted to the defendant without requiring a cross bill. The defendant was the owner of both the legal and equitable title to land, but he was long obstructed in realizing his rights. An injunction bill was filed against him seeking to impede his getting possession under a judgment at law. In his answer the defendant asked for a dissolution of the injunction and a dismissal of the bill. New and unexpected delays occurred pending the appeal from the circuit court, which delays were incident to the termination of a lease and to the death of some of the parties defendant. The situation appealed strongly to the supreme court, and after substantial affirmance in regard to the dissolution of the injunction, the cause was remanded with instructions that the circuit court should take proper affirmative steps in order to put defendant in possession and that an accounting might be had in regard to improvements 22 Electrical Accumulator Co. v. Brush Electric Co. (1890) 44 Fed. 602. 23 Book v. Justice Mining Co. (1893) 58 Fed. 827. 24 Nelson v. Lowndes Co. (C. C. A.; 1899) 35 C. C. A. 419, 93 Fed. 538. and waste as between the plaintiff and the defendant. It will be noted that in this case the plaintiff in his bill had asked for an accounting as to valuable improvements, in the event the title should be decreed to be in the defendant. 2. Bradford v. Union Bank (1851) 13 How. 57, 14 L. ed. 50: A bill was filed for the specific performance of a contract for a sale of land. The court found the contract to be unconscionable and refused to enforce it according to the terms of the bill. But it appeared from the answer and proof that it ought to be enforced according to other terms set forth in the answer and established by the proof, the defendant having indicated a willingness to have the contract so carried out. In effect the contract was reformed and, as reformed, enforced. 25 3. Coburn v. Cedar Valley Co. (1891) 138 U. S. 196, 34 L. ed. 876: In a rather complicated piece of litigation it appeared that the parties had made a compromise out of court. The defendant insisted that this compromise included the controversy in question, but the plaintiff insisted that it did not. The defendant filed a petition setting forth the compromise and prayed that it be given effect. Ordinarily, such a fact should be made to appear by supplemental bill or by cross bill. However, the supreme court sustained an order of the court below disposing of the cause on the petition without cross bill. The supreme court observed on the fact that the objection for want of a cross bill was not made until the decision below was rendered. 4. Kelsey v. Hobby (1842) 16 Pet. 269, 10 L. ed. 961: In this case a release in favor of the defendant was given effect without cross bill. It had been filed in the suit below, and had been made the basis of a motion to dismiss. The parties took proof on the issue of duress in obtaining it. It was held that the want of a formal cross bill was waived. Subject-Matter of Cross Bill. § 1030. Cross Bill Must Be Germane. Perhaps the most important question connected with the cross bill is that which concerns its subject-matter. The cross bill must, so it is held, be germane to the original bill. It must be confined to the same matters as the original bill, and it cannot introduce a new controversy not embraced in the original bill. A cross bill is primarily a defense; and being so considered, it is confined to matters in litigation in the original suit. Without this restriction, new matters might be introduced into a litigation, by cross suits, without end.26 25 There is a broad dictum in this if a cross bill had been filed, if the decase against which the practitioner fendant submits in his answer to a pershould be warned. The court observed formance of the real agreement between that, by the former practice, the bill the parties. The answer is viewed in would have been dismissed, but that the light of a cross bill, and becomes the "the more modern course of proceeding foundation for a proper decree by the is to dispense with the cross bill and court.” make the same decree upon the answer 26 Galatian r. Erwin (1823) Hopk, to the original bill that would be made, Ch. 48, affirmed (1826) 8 Cow. 361, § 1031. Must Not Make Multifarious Issue. A cross bill is bad that goes beyond the original bill and states a cause of action foreign to the primary dispute.27 It may be stated, generally, that no matter is proper for a cross bill that would make the original bill multifarious, if incorporated in the latter; and this may be deemed a test of the propriety of the matter in the cross bill.28 § 1032. Illustrations of Germane Issues Proper for Cross Bill. Where a bill is filed to relieve the plaintiff's property of a lien, mortgage, or other charge on the ground of its invalidity, a proceeding by cross bill to enforce such lien, mortgage, or charge in the event it should be found valid, is clearly germane to the scope and purpose of the original bill, and is highly proper. 1. Railroad Companies v. Chamberlain (1867) 6 Wall. 748, 18 L. ed. 859: A bill was filed to set aside a judgment. One of the defendants, owner of the judgment, filed a cross bill, praying that the judgment might be decreed to be a valid lien, and as such enforced, and that the property might be sold to satisfy it. It was held that the relief prayed in the cross bill should be granted. 2. Chicago, Milwaukee, etc. R. Co. v. Third Nat. Bank (1890) 134 U. S. 276, 33 L. ed. 900: The bank obtained a judgment lien on the plaintiff's property, and was proceeding to advertise it for sale. The plaintiff thereupon filed a bill to restrain the sale. The bank filed a cross bill and prayed that its judgment might be declared a valid equitable lien and incumbrance on the property, that a receiver might be appointed, and that the property might be sold, and for general relief. It was objected that the cross bill was not germane, but the contention was dismissed. "Where in a court of equity an apparent legal burden on property is challenged, the court has jurisdiction of a cross bill to enforce by its own procedure such burden. The court which denies legal remedies may enforce equitable remedies for the same debt; and an application for the latter is not foreign to a bill for the former." 3. North British, etc. Ins. Co. v. Lathrop (C. C. A.; 1895) 17 C. C. A. 175, 70 Fed. 429: After a fire loss the insurance company procured an appraisement, but it afterwards filed a bill to vacate the award on the ground that the same had been procured by fraud. The bill also sought a permanent injunction against any suit at law on the policy, on the ground of false statements made by the assured in regard to the extent of the loss. The defendant filed a cross bill to enforce the policy, showing that on account of the restraining order issued in this suit, she had been precluded from suing at law until the time limitation fixed by the policy had passed. The cross bill was held to be necessary and proper, in order to procure a complete determination of the controversy. Conversely, when an original suit is brought to establish and foreclose a lien on the property of the defendant, he may properly exhibit 27 Johnson etc. Signal Co. v. Union Switch etc. Co. (1890) 43 Fed. 331. Eq. Prac. Vol. II.—40, 28 Gibson, Suits in Chan. (2d ed.) § 737. a cross bill in that suit for the avoidance of the lien, and for the cancellation and discharge of the record of it, which clouds his title. Springfield Milling Co. v. Barnard etc. Mfg. Co. (C. C. A.; 1897) 26 C. C. A. 389, 81 Fed. 261: The plaintiff, having filed a mechanics' lien for materials furnished, sought by bill to enforce the lien against defendant's property. The allegation of the existence of the lien and the prayer for its foreclosure constituted the only ground for relief stated in the bill. The defendant, by cross bill, alleged that the defendant, by reason of breach of the contract and the negligent and unskilful performance of it, had damaged the defendant, cross plaintiff, in a larger sum than the lien sued upon, wherefore the cross plaintiff alleged that the lien did not exist, and prayed that the same right be decreed not to be an incumbrance on the property and that the record of the lien might be extinguished. It was held that the cross bill was germane and proper. $ 1033. Cross Bill May Introduce New Facts. The case next noted furnishes an instructive illustration of the use of the cross bill. The mere fact that a cross bill, as in this case, alleges new and additional facts, not set forth in the original bill, does not make the subject-matter of the cross bill less germane to that of the original bill. It is not the introduction of new facts that makes the cross bill objectionable, but the making of a foreign or multifarious issue. Kingsbury v. Buckner (1890) 134 U. S. 650, 676, 33 L. ed. 1047, 1057, 10 Sup. Ct. 638: The original bill asserted ownership of property held by the plaintiff's father at the time of his death. Part of this property consisted of land acquired by the father under a deed, which was set forth in the bill as the source of the father's title and as the foundation of the plaintiff's claim. A cross bill was filed by one of the defendants relying on the same deed and asking that a certain trust created by the deed should be declared and established. The cross bill was held to be germane to the original bill. § 1034. Scope of Cross Bill in Complicated Litigation. In large and complicated litigation the desirability of determining the details of the controversy in all its aspects in one suit is rightly given much weight. Here the court will allow issues to be brought in by cross bill which in a narrow view might be considered not germane to the original bill, and which, under other conditions, would be held to supply matter for an original suit only. This is particularly true in railroad foreclosures. Morgan's Louisiana, etc. Steamship Co. v. Texas Central R. Co. (1890) 137 U. S. 171, 34 L. ed. 625: The plaintiff company filed a bill to enforce notes given by a railroad for advances of money needed for operating expenses. The notes were secured by an equitable pledge of some bonds issued by the railroad. These bonds were secured by a mortgage on the road. Another railroad company had also made advances to the principal defendant; and this company was itself indebted to the plaintiff, and had sanctioned the transaction by which the equitable pledge in favor of the plaintiff had been created. The trustee under the mortgage was made a defendant and, as representing all bondholders, filed a cross bill, by permission, seeking a foreclosure and asserting that the claim of the plaintiff, if valid, was inferior. It was insisted for the plaintiff that the cross bill was not germane, and that it was, in effect, an original bill. But the supreme court held that it was a good cross bill. "It may be," said the court, that so far as it sought the further aid of the court beyond the purposes of defense to the original bill, it was not a pure cross bill, but that is immaterial.” The subject-matter was the same and a complete determination of the matters already in litigation could not have been obtained except through a cross bill. The fact that different relief was prayed from that prayed in the original bill did not affect its character as a cross bill. § 1035. State Statute as Affecting Right to Maintain Cross Bill. A state law may sometimes have to be considered in determining the question whether the subject-matter of a cross bill is germane to the original bill. Just as state statutes may create and determine rights enforceable by bill, so may they determine the extent of the rights capable of being asserted in a cross bill as germane to the main suit.29 § 1036. Multifarious Issues Not Proper for Cross Bill. The following cases supply illustrations of situations where the matter of the cross bill has been held not to be germane to the subject matter of the original bill.30 The original suit was 1. Galatian v. Erwin (1823) Hopk. Ch. (N. Y.) 48: brought for the purpose of foreclosing two mortgages. By cross bill one of the defendants sought to impeach for fraud the title of the mortgagor, not only to the 29 Remer v. McKay (1889) 38 Fed. 164. was clearly germane to the matter of the original bill. Yet it was held that the cross bill was not properly filed. 30 Chattanooga Med. Co. v. Thedford (1893) 58 Fed. 347, seems to have been The trouble with the cross bill in wrongly decided. A bill was there filed this case was not that it was based on to enjoin the use of a trade name, in matter improper for a cross bill, but connection with the sale of a pro- that the defendant had no good ground prietary medicine. The defendant filed on which to support it as a matter of a cross bill seeking to enjoin the plain- fact and equity. See Chattanooga Med. tiff from using the same name in con- Co. v. Thedford (C. C. A.; 1894) 14 nection with its medicines. The rights C. C. A. 101, 66 Fed. 544, reversing the of both parties in this controversy were case, on the merits, as determined in governed by a contract between plain- (1891) 49 Fed. 949 and (1893) 58 Fed. tiff and defendant, and the cross bill 347. |