deposit, and without obtaining the leave of the Court at all; and the party then brought a petition to rehear or repeal. This, says Lord Hardwicke, in the cases cited, was growing into abuse, and several supplemental bills were brought for vexation. To put these improper bills of review under the like restraint as the other bills of review, the Order of 1741 was made.1

This order provides, "That no supplemental bill, or bill in the nature of a bill of review, grounded upon new matter discovered, or pretended to be discovered, since the pronouncing of any decree of this Court, in order to the reversing or varying of such decree, shall be exhibited without the special leave of the Court first obtained for that purpose. And unless the party exhibiting the same do first deposit with the registrar of this Court so much money, as together with the deposit by the rules of this Court to be made on obtaining a rehearing of the cause or causes wherein such decree was pronounced, will make up the sum of 501., as a pledge to answer such costs and damages as shall be awarded to the adverse party, in case the Court shall think fit to award any at the hearing of the cause on such supplemental or new bill."

The deposit of 501. being made, and the order for liberty to file the supplemental bill, in the nature of a bill of review, being drawn up, the same is then filed. The bill states the new facts, and prays that the cause may be reheard. This suit is proceeded with in the same manner as a bill of review on new matter, and may be met by the same defences. Mitford says, "Bills in the nature of bills of review do not appear subject to any peculiar cause of demurrer, unless the decree sought to be reversed does not affect the interest of the person filing the bill." 3

There is this difference, that in a supplemental bill in the nature of a bill of review, the Court will not, as on a bill of review, entertain the question, or vary it, or reverse the decree on the hearing of that bill, but will require that a petition of appeal or rehearing should be presented, to come on and be heard with such supplemental bill. This was decided by Lord Hardwicke in Moore v. Moore, when a supplemental bill, in the nature of a bill of review, came on to be heard without a petition of appeal or rehear ing, but liberty was given to prefer such petition. So in Perry r 1 Moore v. Moore, 2 Ves. 598.

2 Beames's Ord. 368.

3 Mitf. Pl. 167.

2 2 Ves..598.

Phelips, Lord Eldon said, "if a decree, not signed and enrolled, is sought to be reversed upon error apparent, and a petition of rehearing has been presented, and also a supplemental bill is filed, to introduce new facts discovered since publication, the cause will come on to be heard upon the matter of that supplemental bill, together with a rehearing of the original cause, and the Court will vary the decree upon the rehearing, taking into consideration the new or lately discovered facts."

In Moore v. Moore,2 the cause came before the Court upon a new bill, partly supplemental, in the nature of a bill of review, with new matter said to be existing at the time of the former decree, and discovered since, and partly original as against one party, and on a petition of appeal from a decree made by the Master of the Rolls.

CHAPTER XXXIV.

CROSS-BILL.

As a defendant cannot pray anything in his answer, except to be dismissed the Court, if he has any relief to pray, or discovery to scek, he must do so by a bill of his own, which is called a cross-bill.3

A cross-bill is a bill brought by a defendant against a plaintiff, or other parties in a former bill depending, touching the matter in question in that bill. It is treated as a mere auxiliary suit, or as a dependency upon the original suit.5 And can be sustained only on matter growing out of the original bill. cannot be introduced into a cause by a cross-bill.7

1 17 Ves. 178.

2 2 Ves. 598.

New parties

Lubé Eq. Pl. 39; Morgan v. Tipton, 3 McLean, 339; McConnel v. Hodson, 2 Gilman, 640.

Mitford Eq. Pl. 80, 81; Story Eq. Pl. § 389, 402; White v. Buloid, 2 Paige, 364. A purchaser, pendente lite, from a party to a suit, may file a bill in the nature of a cross-bill, to make himself a party to the suit, so as to have his rights protected. Whitback v. Edgar, 2 Barb. Ch. 106.

Story Eq. Pl. § 309; Slason v. Wright, 14 Vermont, 208; Cross v. De Valle, 1 Wallace U. S. 1.

Daniel v. Morrison, 6 Dana, 186; Crabtree v. Banks, 1 Met. (Ky.) 482; Slason v. Wright, 14 Vermont, 208; Rutland v. Paige, 24 Vermont, 181.

Curtis J. in Shields v. Barrow, 17 Howard (U. S.) 145. But see Jones v. Smith, 14 Ill. 229.

A bill of this kind is usually brought either to obtain a necessary discovery of facts in aid of the defence to the original bill, or to obtain full relief to all parties, in reference to the matters of the original bill. But a cross-bill should never be brought, where the party can obtain, in the original suit, the same relief asked for by the cross-bill.2

The rules of Equity prevent a defendant examining a plaintiff. Hence arises the necessity of a cross-bill for discovery, when the testimony of the plaintiff is sought by the defendant as to any material facts. The cross-bill gives a perfect reciprocity of proof to each party, derivable from the answers of each other. For example, a deed in the hands of the plaintiff may furnish the main grounds of establishing the defence to the original bill. If the defendant wants a discovery of that deed he must file a crossbill for that purpose, although the plaintiff should state in his bill, that the deed is in his custody and ready to be produced as the Court shall direct.6

It frequently happens, and particularly if any question arises between two defendants to a bill, that the Court cannot make a decree without a cross-bill or cross-bills to bring every matter in dispute completely before the Court. In such a case it becomes necessary for some one of the defendants to the original bill to file a bill against the plaintiff and other defendants in that bill, or some of them, and bring the litigated point properly before the Court. One defendant cannot have a decree against a co-defendant without a cross-bill with proper prayer and process, or answer, as in an original suit.9

1 Mitf. Eq. Pl. 81; Story Eq. Pl. § 389.

2 Braman v. Wilkinson, 3 Barb. S. C. 151; Tison v. Tison, 14 Geo. 167; Bullock v. Brown, 20 Geo. 472. A cross-bill which seeks no discovery and sets up no defence, which might not have been as well taken by answer, will be dis missed with costs. Weed v. Small, 3 Sandf. Ch. 273. Cross-bills are not neces sary for the obtaining of credits, or mere matters of discharge; relief thereon can be obtained under the answer. Alston v. Alston, 34 Ala. 15.

Mitf. Eq. Pl. by Jeremy, 81; Rogers v. M'Macham, 4 J. J. Marsh. 37; Troup v. Haight, 1 Hopk. 239.

* Mitf. Eq. Pl. by Jeremy, 81; Cooper Eq. Pl. 85; Pattison v. Hull, 9 Cowen, 747; Armstrong v. Pratt, 2 Wis. 299.

• Talbot v. M'Gee, 4 Monroe, 379. But see Elliot v. Pell, 1 Paige, 263.

A cross-bill is a mode of defence. The original bill and the cross-bill are but one cause.2 It must be confined to the subjectmatter of the original bill, and cannot introduce new and distinct matters not embraced in the original suit, and if it do so, no decree can be founded on those matters.3

If a cross-bill is taken as confessed, it may be used as evidence against the plaintiff in the original suit, on the hearing, and will have the same effect as if he had admitted the same facts in an answer.1

A cross-bill may be filed to answer the purposes of a plea puis darrein continuance at the common law. Thus, where pending a suit, and after replication and issue joined, the defendant, having obtained a release, attempted to prove it, viva voce, at the hearing, it was determined that the release not being in issue in the cause, the Court could not try the fact nor direct a trial at law for that purpose, and that a new bill must be filed to put the release in issue.5

A cross-bill, if seasonably filed, may be sustained for the purpose of obtaining an equitable set-off."

It lies to have an agreement, sought to be specifically performed, delivered up or cancelled, for although the plaintiff should obtain a decree under his original bill, he might still bring his action at law for damage sustained by the non-performance.7

If the only object of a bill be to enforce a contract, a cross-bill

1 Field v. Schieffelin, 7 John. Ch. 252; Galatian v. Erwin, 1 Hopk. 48; S. C. 8 Cowen, 361; Cartwright v. Clark, 4 Metcalf, 194; Nelson v. Dunn, 15 Ala.

201.

Field v. Schieffelin, 7 John. Ch. 252. And, therefore, when a defendant files a cross-bill on matters clearly cognizable in Equity, the cross-bill will supply any defect in jurisdiction, and place the whole cause before the Court, and impose the duty of granting relief to the party entitled. Cockrell v. Warren, 1 Ark. (1 Barb.) 346.

3

May v. Armstrong, 3 J. J. Marsh. 262; Daniel v. Morrison, 6 Dana, 186; Galatian v. Erwin, Field v. Schieffelin, ubi supra; Gouverneur v. Elemendorf, 4 John. Ch. 357; Griffith v. Merritt, 19 N. Y. (5 Smith) 529. Although its allegations must relate to the subject-matter, it is not restricted to the issues of the original bill. Nelson v. Dunn, 15 Ala. 201.

White v. Buloid, 2 Paige, 164.

Mitf. Eq. Pl. by Jeremy, 82; Hayne v. Hayne, 3 Ch. Rep. 19; 3 Swanst. 472, 474; Story Eq. Pl. § 393; Miller v. Fenton, 11 Paige, 18.

6

Cartwright v. Clark, 4 Metcalf, 104. See Troup v. Haight, 1 Hopk. 239. Coop. Eq. Pl. 86, 87; Mont. Eq. Pl. 328.

to rescind a different contract, and with other parties, about the same property, will not lie. But where the vendor of land, among other things in his bill, asserts a lien for the purchase-money, against an assignee of his covenant for a title, the latter may sustain a cross-bill for a rescission of that contract.1

Where a bill is filed to set aside an agreement or conveyance the conveyance cannot be confirmed and established without a cross-bill filed by the defendant.2

The defendant may rely upon matters purely legal, connected with the matters of the bill, for his defence, and, by his cross-bill, require the plaintiff to answer thereto.3

It seems, that a cross-bill is always necessary, where the defendant is entitled to some positive relief, beyond what the scope of the plaintiff's suit will afford him.*

If it is deemed advisable to file a cross-bill, it should be commenced with as little delay as possible, as will be apparent from a consideration of the particular rules, which are applicable to the proceedings in an original and cross-cause.5

The proper time for filing a cross-bill, where such a bill is necessary, is at the time of the putting in the answer to the original suit, and before the issue is joined by the filing of the replication. And as the matters of defence, upon which a cross-bill is founded, must be stated in the answer to the original suit as well as in the cross-bill, it can seldom be necessary to delay the filing of the cross-bill till after the original cause is at issue.

If the cross-bill is not filed before or at the time of answering in the original suit, the delay must be accounted for, or the proceedings will not be stayed."

In Cartwright v. Clark, it was held, that, as a general rule, a cross-bill must be filed before publication of the evidence in the

1 Wickliffe v. Clay, 1 Dana, 589.

2 Carnochan v. Christie, 11 Wheat. 446.

6

Hume v. Long, 6 Monroe, 119.

Pattison v. Hull, 9 Cowen, 747; Jones v. Smith, 14 Ill. 229.

Б 1 Smith Ch. Pr. (2d Am. ed.) 460.

Irving v. De Kay, 10 Paige, 319, 322. See Cartwright v. Clark, 4 Metcalf, 110, 111.

White v. Buloid, 9 Paige, 164. See Irving v. De Kay, 10 Paige, 319, 322; Josey v. Rogers, 13 Geo. 478.

84 Metcalf, 104.