mortgaged premises, but to the other lands. It was held that as a defense to the original suit the cross bill was entirely proper, but that it could not introduce a distinct suit relative to the other lands, or become the foundation of a decree concerning matters not embraced in the original suit; and that no decree beyond the subjects of controversy in the original suit could be made in the cause.

2. Rubber Co. v. Goodyear (1869) 9 Wall. 807, 19 L. ed. 587: A cross bill in a suit for the infringement of a patent was held not to be germane which sought to set off a prior judgment against such damages as the plaintiff might

recover.

3. Stonemetz Printers' Co. v. Brown Folding, etc. Co. (1891) 46 Fed. 851: Where a bill is filed for the infringement of a patent, a cross bill setting up the infringement by the plaintiff of another patent belonging to the defendant will be dismissed because not germane.

4. Stuart v. Hayden (C. C. A.; 1895) 18 C. C. A. 618, 72 Fed. 402, affirmed (1898) 169 U. S. 1, 42 L. ed. 639: A bill was filed by a receiver of a national bank against a former stockholder who had transferred his stock to escape individual liability. The transferee was also named as a defendant, and by cross bill this defendant sought to have the transfer avoided as to him on the ground that the transfer had been induced by fraudulent representations on the part of the former stockholder, his co-defendant. Cross plaintiff also sought to recover the damages thereby incurred from said co-defendant. It was held that the cross bill could not be maintained. The liability of the former stockholder to his transferee was not germane to the liability of either to the bank.

A cross bill introducing new matter foreign to the subject-matter of the original bill is not helped by the circumstance that the plaintiff in the bill is a citizen of another state and therefore cannot be sued by the defendant in an independent action except in a different forum from that in which the original bill is filed.31 The court cannot on considerations of convenience depart from the settled rule of law.

§ 1037. Dismissal of Non-germane Cross Bill on Demurrer.

If a cross bill is not germane to the original bill, it will usually be dismissed on timely demurrer. The circumstance that the cross bill embraces new issues makes it, to that extent, an original bill; and there cannot, so it is said, be two original bills in the same case.32

The actual practice, however, is not so strict as the foregoing statement would seem to indicate. Between the situation where a cross bill will clearly be entertained because of the close connection of its

31 Stonemetz Printers' Co. v. Brown ant and the defendants over the subject Folding-Mach. Co. (1891) 46 Fed. 851. matter of the original bill. If it does 32 In Stuart v. Hayden (1895) 18 so, it becomes an original bill, and must C. C. A. 618, 72 Fed. 402, 410, the be dismissed, because there cannot be court observed: "It may not interpose two original bills in the same case," new controversies between the complain

subject-matter with that of the original bill and the situation where it will clearly not be entertained because of the remoteness of that connection, there is a considerable margin where considerations of mere convenience must be allowed to control. Original bills between the same parties and concerned with kindred matters are often consolidated and heard together, even though they are not connected as bill and cross bill; and there is no reason why it should not be tolerated sometimes to entertain suits as bill and cross bill, though the subject-matter of the purported cross bill is not wholly germane to the original bill. Undoubtedly this is permissible under certain conditions, but a point of some importance is that such a purported cross bill must be considered and treated as an original bill. A pur ported cross bill that is not entirely germane is really a cross bill in the nature of an original bill.

§ 1038. Cross Bill and Cross Bill in Nature of Original Bill.

Advertence to the distinction between the true cross bill and the cross bill in the nature of an original bill goes far to explain much of the lack of harmony in judicial discussions of the subject of cross bills; and recognition of the distinct status of the cross bill in the nature of an original bill will go far to relieve the topic with which we are now dealing of some real difficulties. Before a bill can be considered a true cross bill certain technical conditions must be fulfilled. It must be concerned with the same subject-matter as the original bill, and it must be between the parties to the original suit and none others.33

The cross bill in the nature of an original bill is not restricted to these bounds. In such a bill, a new party may be brought in and matters may be litigated that are not exactly germane to the cause stated in the original bill. The only limit here is that which the judicial discretion of the court sees fit to interpose; and, of course, this liberality of practice is only indulged where there is some proper end to be subserved by allowing such a proceeding. In a word, the court ought not to entertain a cross bill in the nature of an original

33 Indeed, from the older authorities, it appears that a bill could not be considered a pure cross bill unless it was confined exclusively to purposes of defense, as for instance where it sought discovery in aid of the defense. This idea is, or ought to be considered, obsolete; and it is now recognized that a bill may seek affirmative relief and yet

be a true cross bill. The idea that a cross bill cannot be a "pure cross bill " unless it is filed for defensive purposes only-and this means for purposes of discovery-is very persistent in the decisions of the supreme court. See Bowker v. U. S. (1902) 186 U. S. 141, 46 L. ed. 1093.

bill unless the exigency plainly calls for it. After a suit has been adjudicated in the court below on an original bill and purported cross bill, the supreme court will not reverse, where the only objection to the proceedings is that the purported cross bill was not a pure cross bill. A proper decree on the merits having been entered, it is a matter of indifference whether the purported cross bill be regarded as a pure cross bill, as an original bill in the nature of a cross bill, or as an original bill.34

§ 1039. Practice on Cross Bill in Nature of Original Bill.

The practice to be pursued in regard to a purported cross bill that is really an original bill or a cross bill in the nature of an original bill must conform to the practice followed in connection with original bills. For instance, substituted service cannot be permitted upon a cross bill in the nature of an original bill. So, in regard to matters of jurisdiction, the cause presented by the cross bill in the nature of an original bill must be treated as an independent, not an ancillary, proceeding. Thus, if jurisdiction in the original bill is dependent on diversity of citizenship, and the requisite diversity exists as regards the parties to the original bill, then a genuine cross bill can be maintained even though this diversity of citizenship does not exist as between the parties to the cross bill; but a cross bill in the nature of an original bill cannot be maintained unless the requisite diversity of citizenship exists as between all the parties to the cross bill. In other words, the conditions necessary to the maintenance of an original bill must here be fulfilled.35

§ 1040. Germane Cross Bill Need Not State Cause of Equitable Cognizance.

Is it necessary that a cross bill should set forth a cause of equitable cognizance? Stated in another way the question is, can a cross bill be demurred to when it appears that the cross plaintiff has an adequate remedy at law in regard to the matter of the cross bill? This problem will be found easy to solve, if it is borne in mind that the cross bill

34 See Morgan's Louisiana etc. Steamship Co. v. Texas Central Ry. Co. (1890) 137 U. S. 171, 201, 34 L. ed. 625, 635. 35 Bank of Washington v. Arkansas (1857) 20 How. 530, 15 L. ed. 993; Cross v. De Valle (1863) 1 Wall. 5, 17 L. ed. 515.

The circumstance that a pleading is

denominated a cross bill is no objection to entertaining it as an original proceeding where the court has the requisite jurisdiction and a good title to the relief prayed is shown. Lavis v. Consumers' Brewing Co. (1901) 106 Fed. 435.

is not an entire suit but only a part of an entire suit. The matter of the bill and the matter of the cross bill together constitute one single cause. Hence in considering whether the defendant can maintain a cross bill on matter that constitutes a ground of action at law, the relation of that matter to the equitable cause shown in the original bill must be considered. It is a well-established rule that if an original bill shows sufficient matter of equitable cognizance to cause the jurisdiction of the court once to attach, the court may in the same cause proceed to consider and determine all legal matters that are properly incidental to the complete determination of the case. The same principle is applicable in regard to the cross bill. If the relief sought in the cross bill is proper to the complete determination of the controversy, the cross bill will be entertained, notwithstanding the cross plaintiff might have a remedy at law. The defendant may rely on matters purely legal, provided they are connected with the matters of the bill. The jurisdiction of the court to give relief on matters of legal cognizance stated in the cross bill rests upon and is supported by the jurisdiction in the main cause. By bringing the original suit, the plaintiff is precluded from interposing an objection to a cross bill, properly filed therein, to the effect that another court properly has jurisdiction of the issue involved in the cross bill.3

36

Weathersbee v. American Freehold etc. Co. (1896) 77 Fed. 523: Bill to foreclose a mortgage. The defendant set up usury as a defense and, by way of cross bill, claimed a statutory penalty of double interest. On demurrer to the cross bill it was insisted that the demand in question was of a purely legal nature and extraneous to the subject-matter of the bill. But it was held that the cross bill would lie. The recoverability of the penalty depended on the same testimony as the defense of usury, and the controversy over the penalty was directly connected with the matter of the original bill. Besides, "when equity takes jurisdiction it proceeds to administer full relief in every particular, and to close the whole litigation."

§ 1041. Cross Bill in Nature of Original Bill Must State Cause of Equitable Cognizance.

The rule that the plaintiff in the cross bill need not show an independent ground of equity to support the jurisdiction of the court applies only to those cases where the matter of the cross bill is strictly germane to that of the original bill, that is, where the relief sought in the cross bill is necessary to a complete determination of the litigation, or is intimately connected with the cause of action stated in

36 Brandon Mfg. Co. v. Prime (1878) 14 Blatchf. 371, Fed. Cas. No. 1,810.

the original bill. It does not apply where the cross bill is addressed to the obtaining of affirmative relief on a cause of action disconnected with that set forth in the original bill.37 In so far as a cross bill departs from the main controversy it becomes an original bill, and can be supported only upon such grounds as will support an original bill. In other words, a cross bill in the nature of an original bill cannot be maintained without a showing that the cause stated in such cross bill is one of equitable cognizance.

Lautz v. Gordon (1886) 28 Fed. 264: A bill was filed to restrain the defendant from violating the covenants of an agreement whereby the defendant bound himself to use certain apparatus in his manufactory. A cross bill was filed alleging that the agreement in question had been obtained by fraudulent misrepresentations and that the cross plaintiff had been damaged by using the apparatus in question. As a consequence, the cross plaintiff sought to recover the damage caused to him by using the apparatus. It was held that the cross bill could not be maintained. The cross action here was one for deceit, and was considered not to be germane to the cause stated in the bill though it arose out of the same transaction. The court admitted that if the cross bill had sought to recover damages for a breach, on the part of plaintiff, of the same covenants, or if it had sought a cancellation of the covenants, it could have been maintained. So far as the matter stated in the cross bill tended merely to nullify the agreement, it was available in defense by answer; and in this aspect the cross bill was unnecessary.

§ 1042. Cross Plaintiff Not Restricted to Equitable Relief.

A dictum appears in a number of the decisions to the effect that every cross bill is an original bill in so far as it seeks affirmative relief. Hence it is supposed that when a defendant seeks affirmative relief by cross bill, he is limited to equitable relief.38 This view appears to us to be erroneous. It has its roots in the old notion that a bill is never a pure cross bill except when it is brought for purposes of defense only. That notion was current when cross bills filed for purposes of discovery were common. It is needless to say that this idea does not comport with modern practice. We think that a cross plaintiff may have affirmative relief upon matters of a purely legal nature wherever the legal cause of action is plainly connected with the matters of equitable cognizance stated in the original bill. For instance, if a plaintiff files a bill to set aside covenants, or to impeach

37 Lautz v. Gordon (1886) 28 Fed. etc. Mfg. Co. (C. C. A.: 1897) 26 C. C. 264; Weathersbee v. American Freehold A. 389, 81 Fed. 261; Jackson v. Simmons etc. Co. (1896) 77 Fed. 524. (1900) 39 C. C. A. 514, 98 Fed. 768,

38 Springfield Milling Co. v. Barnard 773.