a contract, for fraud, the defendant can, by cross bill, recover damages for a breach of the same covenants or contract by the plaintiff.39

Parties to Cross Bill.

§ 1043. Cross Bill as between Co-Defendants.

The primary notion underlying the right to file a cross bill is that thereby the defendant may make a more complete defense and obtain such relief, in respect to the same subject-matter, against the plaintiff as he may be entitled to. A cross bill implies, ex vi terminorum, a bill brought by the defendant against the plaintiff. Still, the cross bill is not exclusively limited to the obtaining of counter relief against the plaintiff. It may be brought by a defendant against the plaintiff in the same suit or against a co-defendant or against both.40

§ 1044. When Such Bill Maintainable.

There is reason to suspect that the right to file a cross bill against a co-defendant is not as broad and extensive as the right to file a cross bill against the plaintiff. Before a cross bill can be filed against a co-defendant it should appear that the filing of such cross bill, if not absolutely necessary to the determination of the main suit, is at least highly appropriate and desirable as a means of settling the main controversy. A court may well hesitate about letting one defendant bring into the suit a controversy with a co-defendant which, while germane to the main cause, is yet not necessary to it.41 If the courts were too liberal in this respect the plaintiff would sometimes be subjected to delay and made liable for the payment of costs for which he ought not to be held responsible.

A possible future controversy between two co-defendants cannot be made the subject of a cross bill.42

§ 1045. Plaintiff in Original Bill Must Be Joined as Defendant in Cross Bill.

cross bill filed by one co-defendant, the plaintiff in the

39 Lautz v. Gordon (1886) 28 Fed. 264. Semble, on a bill to restrain breach of covenants the defendant may, by cross bill, recover damages for a breach, on part of plaintiff, of the same cove nants, though the cross plaintiff might sue independently at law.

defendant for relief against a original bill must be named as a

40 Book v. Justice Min. Co. (1893) 58 Fed. 827, 831.

41 See Weaver v. Alter (1878) 3 Woods 152, Fed. Cas. No. 17,308; Gregory v. Pike (1886) 29 Fed. 588.

42 Cross v. De Valle (1863) 1 Wall. 5, 17 L. ed. 515; Rubber Co. v. Goodyear

defendant.43 Otherwise it would stand admitted on the record that the cause of action stated in the cross bill is one in which the plaintiff is not interested.

§ 1046. Who May File Cross Bill.

A cross bill can be filed only by one who is named as a party defendant in the original bill.44 One who is not named as a party defendant in the original bill and who is not made such by an amendment to the bill cannot file a cross bill. The fact that an order of court may have been passed, on his own petition or on the petition of one who is an actual defendant in the suit, allowing him to be made a defendant does not alter the case. A stranger to the original bill cannot be thus brought in without the consent of the plaintiff, and without an amendment of the bill, such as would lead to an issue between the plaintiff and the person so brought in. The proper remedy for a stranger is by a petition pro interesse suo and not by a cross bill. Accordingly where a cross bill is erroneously filed by one who is not named as a defendant in the original bill, the pleading may be treated as a petition pro interesse suo.45

The rule stated in the preceding paragraph, that none but those who are named as parties defendant in the original bill can maintain a cross bill, represents an extreme view; and there is authority to the effect that, under certain conditions, the court may, if it sees fit, permit a stranger to come in and file a cross bill. What we here call the extreme view is based on an emphatic dictum of the supreme court, as expressed in the case cited below.46

§ 1047. Exception to General Rule.

Accepting that doctrine as embodying what may properly be termed the general rule, it nevertheless appears to be subject to important exceptions. The most notable one is presented in those situations where the person who seeks to come in and file a cross bill is

(1869) 9 Wall. 807, 19 Fed. 587; Gilmore v. Bort (1905) 134 Fed. 658.

43 Gibson, Suits in Chan. (2d ed.) § 725.

44 Shields v. Barrow (1854) 17 How. 145, 15 L. ed. 162; Thurston v. Big Stove etc. (1898) 86 Fed. 484; Fidelity Trust etc. Co. v. Mobile St. Ry. Co. (1893) 53 Fed. 852. But see Gasquet v. Fidelity etc. Co. (C. C. A.; 1893) 6 C. C. A. 253, 57 Fed. 80, reversing the case next pre

ceding and qualifying the doctrine therein enunciated.

45 Gregory v. Pike (C. C. A.; 1895) 15 C. C. A. 33, 67 Fed. 837. It was so treated in this case, but the party was taxed with costs because he had improperly filed a cross bill instead of adopting the less expensive proceeding by petition.

46 Shields v. Barrow (1854) 17 How. 145, 15 L. ed. 162. See post, § 1049.

a member of a class already represented in the cause. Such a person, though not an actual party to the original litigation, is yet considered a quasi-party; and he is entitled to be heard in every case where there is reason to believe or suspect that his interest is not already properly and honestly represented in the litigation. The quasi-party can come in on petition of intervention only, or the court may allow him to intervene and file a cross bill. Thus, in a suit filed by a beneficiary of a trust to secure the appointment of a new trustee in the place of a deceased trustee, a person who claimed an interest in the trust fund by assignment has been permitted to intervene by petition, in order to establish his right as beneficiary, and also to file a cross bill alleging a depletion of the trust fund and seeking restitution.47

1. Gasquet v. Fidelity Trust etc. Co. (C. C. A.; 1893) 6 C. CA. 253, 57 Fed. SO, reversing (1893) 53 Fed. 850: In a suit filed by a trustee to foreclose a mortgage and to settle the trust, bondholders secured by the mortgage were permitted to intervene and file a cross bill charging that the trustee had mismanaged the trust and seeking relief in respect thereto. Parties in the position of these bondholders are regarded as quasi-parties and have a standing in court, although they be not named as defendants in the bill. The principle apparently extends to all cases where the principal party in the suit represents others by class or otherwise.48

2. Goff v. Kelly (1896) 74 Fed. 327: A suit was brought to determine rights growing out of an assignment for the benefit of creditors. A cross bill was filed by a creditor secured by the trust, though he was not made a party in the bill but came in on his own petition. The court disposed of the cause by dismissing both the bill and cross bill for lack of jurisdiction; but in regard to the right of the creditor to file the cross bill, it was said: "Under the practice in the federal courts a person not a party to a suit must ask, usually by petition, to be made a party thereto. When this request is granted, then the party intervening is allowed to file his cross bill."

§ 1048. Leave of Court.

It should be remembered that there must always be an express permission granted by the court for the filing of a petition or cross bill by one who is not a formal party to the suit. A cross bill filed by a stockholder in foreclosure proceedings was ignored in a case where the court granted him only leave to answer.49

A cross bill filed by a person who is neither a party to the suit nor admitted as a defendant will be stricken from the files.50

47 Hogg v. Hoag (1901) 107 Fed. 807. 48 In Thruston v. Big Stone etc. Co. (1898) 86 Fed. 484, Simonton, Circuit Judge, in a suit to foreclose a mortgage filed by a trustee, refused to allow a bondholder to intervene and file a

cross bill setting up maladministration on the part of the trustee.

49 Bronson v. La Crosse R. Co. (1863) 2 Wall. 283, 17 L. ed. 725.

50 Putnam v. New Albany (1869) 4 Biss. 365, Fed. Cas. No. 11,481.

§ 1049. Making New Parties by Cross Bill.

As a cross bill can, as a general rule, be filed only by one who is a party to the original bill, so likewise, as a general rule, none others can be made defendants to the cross bill except those who are already parties to the suit. As new parties are not permitted to come in as plaintiffs, so new parties cannot be lugged in as defendants.

66

1. Shields v. Barrow (1854) 17 How. 145, 15 L. ed. 162: An effort had been made to bring in, by cross bill, a new party defendant. The citizenship of this party was such that the jurisdiction of the court would have been defeated if he had been made a party to the original suit. In refusing to sanction this proceeding, Mr. Justice Curtis said: New parties cannot be introduced by a cross bill. If the plaintiff desires to make them new parties, he amends his bill and makes them. If the interest of a defendant requires their presence, he takes the objection of nonjoinder, and the complainant is forced to amend or to have his bill dismissed. If, at the hearing, the court finds that an indispensable party is not on the record, it refuses to proceed. These remedies cover the whole subject, and a cross bill to make new parties is not only improper and irregular, but wholly unnecessary." 51

2. Cobb v. Baxter (1873) 1 Tenn. Ch. 405: The learned chancellor, the Hon. William F. Cooper, had occasion to consider here the question whether new parties can be named as defendants in a cross bill. He first pointed out that the cross bill is a dependency on the original suit, constituting but one cause with it; that the cross bill must be confined to the subject-matter of the original bill; and that it cannot introduce new and distinct matter not therein embraced. The reason for this is that, without some such restriction, new matters might be introduced into the litigation without end. On consideration it will be seen that the rule which denies the right to bring in a new subject-matter by cross bill necessarily leads to the further rule which prohibits the making of new parties; for if no new matter of controversy is brought in, new parties are not usually needed. Assuming then that the general rule is against the making of new parties by cross bill, the learned judge proceeded to inquire whether an exception might be safely made, so as to admit the making of new parties defendant in the special case where the subject-matter of the cross bill is strictly confined to the subjectmatter of the original bill, but where nevertheless it seems desirable to bring before the court new parties having an interest in the controversy. On this point he reached a conclusion in conformity with the doctrine prevailing in the federal courts. Said he: "Upon reflection, it will be found that the exception exposes us to the danger which the rule was intended to obviate. Without this restriction,' says Chancellor Sandford, 'new matters might be introduced into a litigation by cross suit without end.' If you bring new parties into the suit upon new equities between them and the original defendants, even if these equities be confined to the subject-matter of the original bill, you open the door to litigation by cross suit without end, as effectually, though not as invariably, as if the new equities were about a new subject-matter. For, the new parties might have a

51 See observation of Lurton, Circuit Judge, in Toler v. East Tennessee etc. Ry. Co. (1894) 67 Fed. 168, 173.

right to resist the equity of the cross bill, although touching the subject-matter of the original suit, precisely as they might have such right in regard to new matter. And in order to make their defense effective it might be necessary for them to ask for a discovery from the complainants in the cross bill, or for positive relief, which can only be had by a cross bill. And so we might have a second cross suit about the same matter, and so on without end." In concluding he observed that if, in any case, the modes of procedure suggested in Shields v. Barrow should prove inadequate to protect the defendant, such defendant should always resort to an original bill.

For purposes of discovery, an officer of a corporation may be joined as a defendant in a cross bill filed against his corporation, though such officer is not named as a party to the original bill.52

§ 1050. Diversity of Practice.

The general rule stated in Shields v. Barrow, prohibiting the making of new parties by cross bill, has been commonly accepted in the federal courts, though the judicial expressions are not altogether harmonious.53 It may be observed that the rule of practice thus observed in the federal courts in regard to this matter is in conformity with the practice of some of the state courts;54 but the view more generally prevailing in the state jurisdictions is that new parties can be brought in as defendants to a cross bill, if their presence seems to be necessary to a proper determination of the matters involved in the cross bill, or if the cross bill seeks appropriate affirmative relief and the new parties are necessary to the granting of such relief.55

1 Hogg, Equity Procedure, § 198: This writer expresses the doctrine commonly accepted in the state courts as follows: "Where a cross bill is filed as a mere defense to the original bill, persons not parties to the original bill cannot be made parties to the cross bill; but if the cross bill seeks affirmative relief, and shows

52 McComb v. Chicago etc. R. Co. (1881) 7 Fed. 426.

53 Thruston v. Big Stone etc. Co. (1898) 86 Fed. 484; Lavis v. Consumers' Brewing Co. (1901) 106 Fed. 435; Bunel v. O'Day (1903) 125 Fed. 303, 319; Newton r. Gage, (1907) 155 Fed. 598. Contra, Brandon Mfg. Co. v. Prime (1878) 14 Blatchf. 371, Fed. Cas. No. 1,810; Ulman v. Iaeger (1907) 155 Fed. 1016.

54 Shaw r. Millsaps (1874) 50 Miss. 380; Wright v. Frank (1883) 61 Miss. 32; Oswald r. Givens (1832) Rich. Eq. Cas. 326; Derbyshire v. Jones (1896) 94 Va. 140,

55 Coster v. Bank (1853) 24 Ala. 37; Jones v. Smith (1852) 14 Ill. 229; Hurd v. Case (1863) 32 Ill. 45; Scott r. Milliken (1871) 60 Ill. 108; Fletcher 1. Holmes (1865) 25 Ind. 458; Curd r. Lewis (1833) 1 Dana 351; Sharp r. Pike (1844) 5 B. Mon. 155; Pollard r. Wellford (1897) 99 Tenn. 120; Hildebrand v. Beasley (1872) 7 Heisk. 121; Stockard r. Pinkard (1845) 6 Humph. 121; Blodgett v. Hobart (1846) 18 Vt. 414; Kanawha Lodge r. Swann (1892) 37 W. Va. 176; Martin v. Kester (1901) 49 W. Va. 647.