that the filing of a cross bill after that stage would lead to the taking of additional proof, a thing not permitted because of its conduciveness to perjury. But the practice on which "this artificial superstructure of caution and prevention" was raised no longer exists. Thus, whereas formerly the proof was secretly taken before commissioners or examiners on written interrogatories, and the result was kept from the knowledge both of the parties and of their solicitors until publication, now the testimony is usually taken orally before an examiner and in the presence of the parties and their solicitors. Under this state of affairs it has become customary, even in case of depositions taken on interrogatories, for the clerk to open them and permit inspection by the parties as soon as the depositions are returned into court. Hence, any rule founded on the idea of secrecy in taking of proof is obsolete. Accordingly, it has been held that the publication of the testimony no longer affords any proper criterion for limiting the time for filing a cross bill.79

§ 1062. Cross Bill after Hearing on Merits.

The courts generally disapprove of the filing of a cross bill after the original suit has been heard on the merits, yet it is discretionary even at this stage.80

The circumstance that the application for leave to file a cross bill comes very late as, for instance, after the cause has been heard on the proof previously taken, will be conclusive against the granting of the leave, unless special reasons are shown. This is particularly true where the issue tendered by the cross bill would necessitate more proof.81

§ 1063. Leave Should Precede Filing of Cross Bill.

The leave to file a cross bill should be obtained, if practicable, before the cross bill is filed; but if the cross bill is filed before leave is obtained, the propriety of allowing it may be considered by the

79 Neal v. Foster (1888) 34 Fed. 496. In Bronson v. Railroad Co. (1862) 2 Furthermore, it was said in this case, Black, 524, 532, 17 L. ed. 359, 360, the that the former rule, denying the right supreme court emphatically said that it to file a cross bill after publication, even did not approve of the practice of filing if still in force, should not be applied in cross bills after the original suit has a case where the cross bill sets up mat- been heard and passed on. The plainter entirely distinct from that embodied tiff should not wait until the pleadings in the issues already made; for the new are perfected, the proof taken, and the matter would be supported by different cause heard. proof.

80 Huff v. Bidwell (C. C. A.; 1907) 81 C. C. A. 43, 151 Fed. 566,

81 Rogers v. Riessner (1887) 31 Fed.

591,

court on motion to strike or even on demurrer, the matter being so entirely one of discretion.82

$ 1064. Mode of Objecting to Unmeritorious Cross Bill Filed by Leave.

If a cross bill, put in under general leave, shows no merits, it may be demurred to. In the case cited below a cross bill, put in under an order of court granting the defendant leave to file a cross bill, appeared to contain no matter other than such as was properly available by answer. The court ordered it to be stricken from the files, the idea being that the filing of an unmeritorious cross bill is an abuse of the leave to file.83

§ 1065. Necessity for Service of Judicial Process.

The service of process is necessary to bring the defendant in the cross bill properly before the court. At first blush it might seem that the court could safely assume jurisdiction over the defendant in the cross bill (being the plaintiff in the original bill or a co-defendant therein) on the ground that he is already in court in the main cause. But this idea is not countenanced for the very good reason that it would lead to abuses. A person against whom any sort of judicial proceeding is set going has a right to informed of that fact by the due service of process, and the court cannot exercise its judicial power over him until service of process has first been obtained. This rule applies to proceedings by cross bill as well as to proceedings by original bill. For instance, the defendant in a cross bill cannot, as a general rule, be brought in by mere publication.84

1066. Substituted Service.

The rigid enforcement of the rule here stated would often be fatal to the right of the defendant to maintain a cross bill, for it often happens that the plaintiff in the original bill resides beyond the jurisdiction of the court or for some other reason cannot be reached by its process. It would certainly be highly unjust to permit a plaintiff so situated to proceed with the main litigation, at the same time being safe from the counter attack of the helpless defendant. Accordingly the court here recognizes the principle of substituted

82 Neal v. Foster (1888) 34 Fed. 496; Brush Electric Co. v. Brush-Swan etc. Co. (1890) 43 Fed. 701.

83 Dickerman v. Northern Trust Co. (C. C. A.; 1897) 25 C. C. A, 549, 80

Fed. 450 (1900) 176 U. S. 181, 44 L. ed. 423.

84 Webster Loom Co. v. Short (1876) Fed, Cas, No. 17,343.

service; and upon a proper showing allows such service on the solicitor who represents the absent party in the original proceeding.85

It is obvious that the power of the court to bring in the defendant to a cross bill by constructive service is limited to true cross bills. If a bill, though called a cross bill, is really an original bill, or is a cross bill in the nature of an original bill, constructive service cannot be permitted.

§ 1067. Answering Cross Bill.

When discovery was more important than it now is, there was a rule to the effect that the plaintiff in the original bill could not be forced to answer the cross bill until the plaintiff in the cross bill had answered the original bill. The idea was that possibly the plaintiff in the original bill might need the discovery sought in his original bill to enable him to make a proper answer and defense to the cross bill. Equity rule 72 gives recognition to and perpetuates this practice in the particular case where the cross bill is filed for purposes of discovery only.

Equity Rule 72 (in part): 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 compellable to answer the cross bill.

§ 1068. Stay of Original Suit till Cross Suit Ready for Hearing.

When a cross bill, is filed it is often desirable that the proceedings under the original bill should be delayed until the pleadings in the cross suit are brought to a conclusion, to the end that both branches of the litigation may proceed pari passu and be determined at the same time. The court will, in its discretion, make all proper orders in this behalf; but the mere filing of the cross bill does not of itself have the effect of staying the proceedings under the original bill.86

Hearing and Disposition of Cross Bill.

§ 1069. Setting for Hearing.

The cross bill is a part and dependency of the main suit, and is so incorporated with it that if either the bill or cross bill is separately

85 Dunn v. Clarke (1834) 8 Pet. 1, 86 Williams v. Carle (1856) 10 N. J. 8 L. ed. 845; Lowenstein v. Glidewell Eq. 543; Farmers' Loan etc. Co. v. Sey(1878) Fed. Cas. No. 8,575; Eckert v. mour (1842) 9 Paige 538. Bauert (1823) Fed. Cas. No. 4,266; Ward v. Sebring (1824) Fed. Cas. No. 17,160.

set for hearing, the effect is to set the whole suit for hearing; and on appeal the appellate court will examine both bill and cross bill as one proceeding.87

§ 1070. Adjudication of Cause on Cross Bill.

The principles to be applied at the hearing in judging of the merit of the claim set forth in the cross bill are in every respect the same as if the proceeding were by original bill.88

If a cause is heard on a demurrer to the cross bill and the demurrer is sustained, a decree will be entered dismissing the cross bill. Thereupon the cause will proceed as if the cross bill had not been filed.89

§ 1071. Final Disposition of Bill and Cross Bill.

At the final hearing on bill and cross bill the court enters its decrec in conformity with the merits as determined from the proof. If it appears that the plaintiff is entitled to relief under the original bill and that, as may occasionally happen, the cross plaintiff is also entitled to relief under the cross bill, a decree will be entered in favor of the plaintiff and cross plaintiff respectively to the extent that each may have established his right. If the bill appears to be sustained and the cross bill not sustained, a decree will be entered granting relief under the original bill and dismissing the cross bill. If the bill appears not to be sustained but the cross bill is sustained, a decree will be entered dismissing the original bill and granting relief under the cross bill.90

§ 1072. Relief Granted on Cross Bill after Dismissal of Original Bill.

A cross bill may be retained, for the purpose of granting affirmative relief under it, even after the original bill has been dismissed and is completely out of court; 91 and, of course, if the original bill is technically left pending, the court can decree such relief to the cross plaintiff as the case requires.92

87 Meissner v. Buek (1886) 28 Fed. 161. See Ex p. Railroad Co. (1877) 95 U. S. 225, 24 L. ed. 356; Ayres v. Carver (1854) 17 How. 591, 15 L. ed. 179.

88 Goff v. Kelly (1896) 74 Fed. 327. 89 Hunt v. Oliver (1871) Fed. Cas. No. 6,894.

90 Blythe_v. Hinckley (1897) 84 Fed. 228, 236; Jackson v. Simmons (1900) 39 C. C. A. 514, 98 Fed. 773.

91 Railroad Companies v. Chamberlain (1867) 6 Wall. 748, 18 L. ed. 859. Small v. Peters (1900) 104 Fed. 401.

"Where the cross bill asks affirmative relief, and is therefore not a pure cross bill, the dismissal of the original bill may not dispose of the cross bill, which may be retained for a complete determination of the cause." Fuller, C. J., in Bowker v. U. S. (1902) 186 U. S. 141, 46 L. ed. 1093. See San Diego Flume Co. v. Souther (C. C. A.; 1898) 32 C. C. A. 548, 90 Fed. 164 (1900) 44 C. C. A. 143, 104 Fed. 706.

92 Chicago, etc. R. Co. v. Union Roll

Holgate v. Eaton (1885) 116 U. S. 33, 29 L. ed. 538: The bill and cross bill were heard together. The original bill was dismissed, but it was held that relief might be granted under the cross bill. The cross bill was not filed merely as a means of defense, but for the purpose of obtaining affirmative relief. The defeat of the original bill established the right to relief under the cross bill, and sustained the disposition of the cause on the cross bill."

66

Though the rule, allowing relief to be granted on a cross bill notwithstanding the dismissal of the original bill, is undoubtedly sound and supported by sufficient authority, some of the decisions of the supreme court nevertheless contain expressions to the effect that, when the original bill is dismissed, the cross bill must of necessity go also; or at least it is supposed that, as a general rule, the effect of dismissing the original bill is to carry the cause wholly out of court, so as to preclude the granting of relief on the cross bill.93

§ 1073. When Dismissal of Original Bill Dismisses Cross Bill.

It is certainly true that in some situations the dismissal of the original bill operates to carry the whole cause out of court; but these situations are plainly exceptional, and the general rule is to the effect, as stated above, that any appropriate affirmative relief may be granted on the cross bill, though the original bill is dismissed. Generally speaking, an equity cause goes out of court only as it is expressly put out by a decree or order of the court. A general order dismissing the cause would operate to dismiss the whole suit and all of its parts; but a specific order dismissing the original bill, and confined to the original bill, will not preclude the granting of relief on the cross bill, if the case is one where relief could properly be granted to the cross plaintiff.

The situations in which the dismissal of the original bill operates ipso facto as a dismissal of the cross bill are those where the cross bill is filed exclusively as a means of defense, as where the cross bill seeks a discovery or sets forth new matter in aid of the defense. Such a cross bill necessarily goes out when the original bill is dismissed, for it is then functus officio. It has either accomplished its purpose or is rendered unnecessary, when the original bill is defeated. If a cross bill seeks affirmative relief, the dismissal of the original bill does not necessarily operate to dismiss the cross bill.

ing Mill Co. (1884) 109 U. S. 702, 27 L. ed. 1081.

93 United States v. California, etc. Co. (1904) 192 U. S. 355, 48 L. ed. 476;

Dows v. Chicago (1870) 11 Wall. 108, 20 L. ed. 65; Cross v. De Valle (1863) 1 Wall. 5, 17 L. ed. 515.