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that persons not parties to the original bill are necessary parties to the cross bill, and the ends of justice require it, such persons should be made parties to the cross bill." 56

§ 1051. Judicial Discretion as to Bringing In New Parties.

In point of theory it would be rational to hold that this matter, like so many other questions of equity practice, is one that to a certain extent is within the discretion of the court. A new party defendant certainly ought not to be brought in by cross bill if the result would be to cause undue delay,57 or to render the cause objectionably multifarious. Nor can a new party be brought in by cross bill whose presence would have defeated the jurisdiction of the court if he had been joined as a party in the original bill.58 But there is reason to believe that exceptional situations are sometimes presented where new parties can conveniently be made by cross bill without violence to any sound principle of practice; and when such a situation is presented, the court has, we submit, ample authority to permit such a party to be joined. When a new party is made by cross bill, the plaintiff in the original bill can demur, if he sees fit, and the court can then pass upon the propriety of the joining of the new party, just as it passes on the question of multifariousness when brought up by demurrer. It must be added that this line of thought is not in conformity with the ideas that have heretofore prevailed in the federal courts; but the whole question must be considered to be, in a measure, still open in these courts. The circuit courts have merely been following a dictum of the supreme court, and the last authoritative word is yet to be spoken about it.

As a concluding suggestion on this point of practice, the author may be permitted to suggest that a cross bill bringing in a new party is not, technically speaking, a true cross bill at all, but is a cross bill in the nature of an original bill. In so far as it partakes of the nature of an original bill it is not subject to the same limitations as the technical cross bill.59

56 Approved in Ulman v. Iaeger (1907) 155 Fed. 1017.

Judge Gibson states the rule thus: "A cross bill may be filed by a defendant, not only against the complainant or against the complainant and one or more of the defendants, but it may also bring in new parties when necessary for the complete determination of the matters involved in the original suit; but the complainant in the original suit should be made a defendant to the cross bill in all cases. A cross bill may bring

new parties before the court, but they do not thereby become parties to the original bill. New parties cannot, however, be made by cross bill, unless they are connected with the original matter in litigation." Suits in Chan. (2d ed.) § 725.

57 Odom v. Owen (1873) 2 Baxt. 446. 58 Newton r. Gage (1907) 155 Fed. 598. This is the point actually decided in Shields r. Barrow (1854) 17 How. 145, 15 L. ed. 162.

59 See ante, § 1038.

Formalities and Incidents of Filing Cross Bill.

§ 1052. Frame of Cross Bill.

The cross bill should be drawn with the same care and precision as an original bill, and it should, as a general rule, set forth the ground of cross relief with the same particularity.

It has been held that a cross plaintiff, charging usury with respect to securities that are the subject-matter of the original suit, must, if he seeks their cancellation, offer to do equity by paying what is legally due, just as a plaintiff in an original bill would do. Similarly, a cross bill seeking to quiet cross plaintiff's title must contain the same allegations as regards possession that would be necessary in an original bill filed for that purpose.

60

§ 1053. Recitals of Original Pleadings and Proceedings.

The contents of the cross bill should consist of a statement of so much of the matter of the original bill and of the other pleadings, as well as of the subsequent proceedings thereon, as may be necessary to show what right or defense is sought to be brought before the court for adjudication. If this is done and a proper case made for cross relief, it is enough. The old rule stated in the books, to the effect that the cross bill should be quite full in its recitals and should set out the original pleadings and proceedings fully, had its origin in a period when the cross bill could be filed in another court than that in which the original suit was pending. Under that system the recitals of the bill were necessarily required to be such as would put the court in full possession of the whole case. But this practice not being now in vogue, that rule no longer maintains.61

§ 1054. Cross Bill as Distinct Pleading.

A cross bill is technically distinct from the answer, and the two pleadings are to be kept separate. Even when they are filed at the same time, as they usually are, no attempt should be made to embody them in a single document. The proper practice in the federal courts is to keep them separate and distinct. Each should have its own. caption; but both may be filed under the same cover.62

The practice prevailing in some jurisdictions whereby an answer

60 Jackson v. Simmons (1900) 39 C. (1904) 132 Fed. 195; Ritchie v. McC. A. 514, 98 Fed. 768. Mullen (1897) 79 Fed. 522, 25 C. C. A. 50.

61 Neal v. Foster (1888) 34 Fed. 496. 62 United Cigarette etc. Co. v. Wright

in the nature of a cross bill, stating grounds for affirmative relief, may be treated as a cross bill for purposes of granting that relief, is not recognized in federal practice. The distinct matter for cross relief must be separately stated and formally put in as a cross bill.63 Where an answer and cross bill are combined and the cross bill aspect of the pleading is not insisted on, or is abandoned, the pleading is properly treated merely as an answer.64

§ 1055. Contents of Cross Bill.

A cross bill will, as a general rule, be found to be properly drawn if it shows the following facts in terse and distinct language: (1) the fact and the date of the filing of the original bill; (2) the names of the parties to the original bill; (3) the general objects and prayer of the bill; (4) the proceedings in the cause since the original bill was filed; (5) the rights of the party exhibiting the cross bill that are necessary to be made the subject of cross litigation; or the defense that is to be relied on, if the cross bill is filed solely for defensive purposes.65

The cross bill should contain a prayer for process, and a prayer for the necessary relief or for a dismissal of the suit, according as the cross bill seeks relief or seeks to interpose a defense. The rules forbidding the introduction of scandalous and impertinent matter apply to cross bills as to other pleadings. The case set up in the cross bill must be consistent with the defense made in the answer.66

§ 1056. Cross Bill Must Be Consistent.

A cross bill like an original bill must make a consistent and not a self-contradictory case. Thus a cross bill that sets forth a cause of action arising out of a fraudulent sale of stock to the cross plaintiff

63 Ford v. Douglas (1847) 5 How. 143, 12 L. ed. 89; White v. Bower (1891) 48 Fed. 186; Chapin v. Walker (1881) 6 Fed. 794: Armstrong v. Chemical Nat. Bank (1889) 37 Fed. 466; Brande v. Gilchrist (1883) 18 Fed. 465; White v. Bower (1891) 48 Fed. 186.

By a loose form of pleading some times adopted by solicitors and simply tolerated by the courts, the cross bill consists merely of the answer with an added prayer for affirmative relief. See Meissner . Buek (1886) 28 Fed. 161. This is bad practice.

JJ., that affirmative relief may be grant ed to a defendant, without a cross bill, on an answer praying for affirmative relief, where the pleadings have been made up prior to removal and the equity practice of the state sanctions such a pleading. This ruling was perhaps not necessary to the decision in the case where it was made. City of Detroit r. Detroit City Ry. Co. (1893) 55 Fed. 569.

64 Hoge v. Eaton (1905) 135 Fed. 411. 65 Gibson, Suits in Chan. (2d ed.) § 732.

66 Gibson, Suits in Chan. (2d ed.) §

In removal cases it has been ruled in the circuit court by Taft and Swan, 732,

is bad, if it seeks damages for the deceit and also a rescission of the sale; and a decree has been held to be erroneous where it gave damages as to part of the cause of cross action and granted a rescission as to the other part. A person who is defrauded in this way must elect between the different causes of action in deceit and for rescission. A cross bill that confuses them is inconsistent and should be dis missed.67

§ 1057. Plaintiff Must Be Concerned in Controversy.

A cross bill involving litigation between various co-defendants, in which litigation the plaintiffs in the original suit are not interested, is demurrable. Such a cross bill is not germane.68 A partner who has been joined as co-defendant with his partner in a creditors' bill cannot by cross bill obtain relief against such partner in regard to matters that exclusively concern their mutual relation as partners.69

§ 1058. Court Where Cross Suit May Be Instituted.

A cross bill can be filed only in the court where the original bill is depending." In England, formerly, a cross bill could be filed in another court. This practice does not prevail in the federal courts.71

§ 1059. When Cross Bill to Be Filed.

As the use of the cross bill does not supersede the necessity for an answer and as the duty to answer the original bill has precedence of the right to file a cross bill,72 it naturally results that the answer should be put in before the cross bill is filed, or at least contemporaneously with it. If the cross bill is put in first this is an irregularity.720 The usual practice is to file the two pleadings together. However, if the defendant sees fit to delay the filing of the cross bill until later, he is free to do so.

The filing of a cross bill, when the step is timely taken, is a matter of right, and not of mere favor; but if the defendant delays too long, he cannot file a cross bill without first obtaining leave of the court. Just what juncture in the proceedings terminates the defendant's

67 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.

68 Putnam v. New Albany (1869) 4 Biss. 365, Fed. Cas. No. 11,481; Stuart v. Hayden (C. C. A.; 1895) 18 C. C. A. 618, 72 Fed. 402.

69 Vannerson v. Leverett (1887) 31 Fed. 376.

Eq. Prac, Vol., 11.—41,

70 Ward v. Sebring (1824) 4 Wash. C. C. 472, Fed. Cas. No. 17,160.

71 Neal v. Foster (1888) 34 Fed. 496. 72 Equity Rule 72.

720 Allen v. Allen (1828) Fed. Cas. No. 18,223,

right to file a cross bill and puts him, in this respect, upon the grace of the court has not been determined. It is reasonable to suppose that the filing of the replication to the answer marks the point.73 The filing of the replication brings the cause to issue and makes it ready for the taking of proof. To file a cross bill after that time, is calculated to make changes in the course or amount of testimony; and it is reasonable to say that the court should be consulted whenever it becomes desirable to file a cross bill after that stage is passed.

By a local rule prevailing in one of the circuits, it is permissible for the defendant to file a cross bill, without special leave, at any time before the taking of proof begins.74

§ 1060. Discretion of Court to Allow Cross Bill in Later Stages.

There is no fixed time or stage in the progress of a suit prior to final adjudication, beyond which a court may not, in its discretion, permit a cross bill to be filed. In a proper case a cross bill may be filed at any time before the final hearing; and even at the final hearing, if the court finds the same necessary to a proper and complete determination of the controversy, it will give the defendant permission to file a cross bill; or it may, of its own accord, direct one to be filed. Though there should be as little delay as possible in filing cross bills, yet this is a matter entirely within the discretion of the court.75 Permission has been given for the defendant to file a cross bill, when the application was made at the same time that the plaintiff in the original bill asked for leave to take a voluntary dismissal.76

Leave will not be granted to file a cross bill where the document that is tendered with the application contains matter not appropriate for a cross proceeding.7

77

As the granting of leave to file a cross bill is ordinarily a matter in the discretion of the court, the appellate court will not reverse an order granting or refusing such leave.78

§ 1061. Cross Bill after Publication of Testimony.

It used to be the rule that the court would not allow a cross bill to be filed after the publication of the testimony. The reason given was

73 See Josey v. Rogers (1853) 13 Ga. tral Transportation Co. (1891) 49 Fed. 478.

74 No. 21 of Rules of Circuit Court for N. D. California.

75 Morgan's Co. r. Texas Central Ry. (1890) 137 U. S. 171, 34 L. ed. 625.

76 Pullman's Palace Car Co. t. Cen

261.

77 Johnson R. S. Co. v. Union S. & S. Co. (1890) 43 Fed. 331.

78 Indiana S. R. R. Co. v. Liverpool, L. & G. Ins. Co. (1883) 109 U. S. 168, 27 L. ed. 895,

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