the costs to date, but not to require the payment of a docket fee unless the demurrer has been argued; and it is usual not to pass upon the demurrer when such leave is requested. The order allowing the amendment should state the new matter to be inserted. If the amended pleading states new matter not allowed by the order, it may be stricken from the file.' An objection that an amended bill contains matter which should have been pleaded in a supplemental bill is waived if not set up by demurrer, plea or answer. The court upon appeal will disregard an amended pleading filed without leave, unless the other party has treated it as valid, when he cannot raise the objection for the first time upon appeal.10 When both parties have conducted the case as if the pleadings contained certain allegations therein omitted, an amendment inserting such allegations may be allowed at almost any stage of the cause." Where the record on appeal shows that an amended bill which omitted one of the original parties was filed by leave of the court, it will be presumed that leave to dismiss as to such party was granted when there is nothing in the record to show the contrary. An appellate court may, but rarely will, reverse a decree for an error in refusing permission to make an amendment; never unless the proposed amendment appears upon the record.15 It has been said that a decree will not be reversed for an error in allowing amendments.16 A Federal appellate court will not allow a pleading to be amended upon appeal to it,17 except by consent.18 But it was held that a Circuit Court had power to allow an amendment when hearing an appeal from a District Court.19 13 14 5 Edison El. L. Co. v. Mather El. 627, 640; Lant v. Manley, 75 Fed. R. Co., 53 Fed. R. 244. 634. 6 Daniell's Ch. Pr. (5th Am. ed.) 410. 14 Mer. Nat. Bank v. Carpenter, 101 U. S. 567, 568; Hudson v. Randolph 7 Strange v. Collins, 2 V. & B. 163, (C. C. A.), 66 Fed. R. 216. 167. 15 National Bank v. Carpenter, 107 8 Seattle & S. & E. Ry. Co. v. Union U. S. 567, 568. Tr. Co., 79 Fed. R. 179. 9 Terry v. McLure, 103 U. S. 442. 10 Clements v. Moore, 6 Wall. 299. 11 Tremolo Patent, 23 Wall. 518. 12 Hicklin v. Marco (C. C. A.), 56 Fed. R. 549. 13 Riddle v. Whitehill, 135 U. S. 621, 16 Chapman v. Barney, 129 U. S. 677, 681. 17 Pacific R. Co. of Mo. v. Ketchum, 95 U. S. 1. 18 Kennedy v. Georgia State Bank, 9 How. 586. 19 Warren v. Moody, 9 Fed. R. 673. CHAPTER XIII. CROSS-BILLS. § 169. Definition and origin of cross-bills.- A cross-bill is a bill filed by a defendant in a suit in equity against one or more of the other parties, in order to obtain either discovery of facts in aid of his defense, or complete relief to all parties as to the matters charged in the original bill. It was borrowed through the canon, from the reconventio of the later civil law; 2 and from it is derived the counterclaim of code-pleading. It was originally used chiefly for the purpose of set-off and discovery, which modern statutory enactments have made it now possible to obtain in a simpler way. § 170. When a cross-bill should be filed.-A cross-bill is filed by one of the defendants to a suit in equity either for his own protection, or by the direction of the court at the hearing, if the pleadings are then insufficient to enable it to determine the rights of all the parties sufficiently to make a complete decree upon the subject-matter of the suit. This latter case most § 169. 1 Nelson, J., in Ayres v. Carver, 17 How. 591, 595; Springfield M. Co. v. Barnard (C. C. A.), 81 Fed. R. 261. 164. Where the mortgagee filed a bill to collect rents from a lessee and a sub-lessee of the mortgaged railroad, and for a declaration that the 2 Story's Eq. Pl., § 402; Langdell's lease was binding upon the sub-lessee, Eq. Pl., $$ 152, 154. a cross-bill by the lessee against the 3 See Brande v. Gilchrist, 18 Fed. mortgagor, who was a defendant to R. 465. § 170. 1 Langdell's Eq. Pl., § 124; Daniell's Ch. Pr. (5th Am. ed.) 1550; Field v. Schieffelin, 7 J. Ch. (N. Y.) 250. Where a bill was filed to restrain a sale under an execution, the defendant was allowed to file a crossbill praying a decree, declaring that he had a lien upon the property on which he had levied, appointing a receiver, and directing the sale of such property. Chicago, M. & St. P. Ry. Co. v. Third Nat. Bank, 134 U. S. 276. See Remer v. McKay, 38 Fed. R. the original, seeking a cancellation of the lease, was held properly filed. Jesup v. Illinois Cent. R. Co., 43 Fed. R. 483. It has been held that a crossbill may be filed in a suit to foreclose a mechanic's lien, for the cancellation of the record of the lien, with damages for a breach of the mechanic's contract (Springfield M. Co. v. Barnard S. Mfg. Co., 81 Fed. R. 261); in a suit to foreclose a vendor's lien, for the foreclosure of a subsequent vendor's lien after the cross-complainant has secured the payment of the amount frequently happens when persons in opposite interests are codefendants. Although a defendant can by his answer obtain the benefit of any defense he may have against the plaintiff's claim, he can, except in a very few cases, obtain no relief against the latter in the same suit beyond what results necessarily from the denial of the prayer of the original bill. "If the facts which a defendant wishes to set up destroy the plaintiff's apparent cause of action, they constitute a defense, and should be set up by answer or plea; but if they only furnish a reason why the court should make a decree depriving the plaintiff of his cause of action, they must be set up by a crossbill; and in the latter case the defendant's answer to the original bill should strictly contain nothing but discovery." Where the plaintiff's right depends upon an instrument or conveyance which is not void, but merely voidable on account of fraud, or otherwise, the defendant can in most cases only set up the facts showing its invalidity by a cross-bill. So where the defendant claims that a contract upon which the plaintiff relies does not express the true agreement between the parties, he must, except que the original plaintiff (Cox v. Price (Va.), 22 S. E. R. 512); in a suit for the cancellation of a lease for the return of property delivered thereunder (Pullman's P. C. Co. v. Central Tr. Co., 171 U. S. 138); in a suit by a street railway company to enjoin a city from forfeiting a franchise, by a mortgagee for the appointment of a receiver to borrow the funds needed for payment to prevent the forfeit ure. Union Street Ry. Co. v. City of Saginaw (Mich.), 73 N. W. R. 243. Where an insurance company had procured an injunction against a suit upon a policy which contained a limitation clause, the court sustained a cross-bill for a recovery of the amount of the policy on the ground that a State court of common law might hold that the injunction did not extend the period for bringing suit. North B. & M. Ins. Co. v. Lathrop (C. C. A.), 63 Fed. R. 508. 2 Carnochan v. Christie, 11 Wheat. 446; Ford v. Douglas, 5 How. 143; 3 Langdell's Eq. Pl., § 155. 4 Ford v. Douglas, 5 How. 143; Langdell's Eq. Pl., § 131; Jacobs v. Richard, 18 Beav. 300; Beddoes v. Pugh, 26 Beav. 407, 416, 417; Holderness v. Rankin, 2 De Gex, F. & J. 258; Eddleston v. Collins, 3 De Gex, M. & G. 1, 16; Chapin v. Walker, 2 McCrary, 175; Manley v. Mickle, 55 N. J. Eq. 563; s. c., 37 Atl. R. 738. But see Dayton v. Melick, 27 N. J. Eq. (12 C. E. Green), 362; Pitts v. Powledge, 56 Ala. 147; Kennedy v. Green, 3 My. & K. 699, 718; Eyry v. Hughes, 2 Ch. D. 148; Osborne v. Barge, 30 Fed. R. 805; Green v. Turner, 80 Fed. R. 41. 12 when the bill prays specific performance," file a cross-bill for the reformation of the contract. In a suit to set aside a contract, the defendant cannot have the contract enforced unless he files a cross-bill,' when in a proper case he can also obtain a decree declaring the contract to be void. A decree dismissing a bill to enjoin an action of ejectment cannot determine the title to the land in the absence of a cross-bill. It has been held that a discharge in bankruptcy pending a suit,10 the right to equitable set-off," and the right of sureties to subrogation," can only be pleaded by defendants in cross-bills. There are very few cases 13 in which a court can give one defendant relief against another, unless the former files a cross-bill. In a case where the original bill prayed a confirmation of a title under a deed absolute in form, a cross-bill by one of the defendants, claiming that the deed be declared a trust deed for her sole benefit, was held to be germane to the subject-matter of the - suit, and sufficient to support a decree binding the other defendants as well as the plaintiff.15 A State statute authorizing affirmative relief upon an answer without a cross-bill will not be followed by a Circuit Court of the United States, 16 at least in a suit originally brought there." No party is obliged to file a cross-bill unless the court orders him to do so.18 Otherwise, he may ordinarily seek by an independent bill the relief which he desires.19 It has been held that a mortgagee, who has 5 Infra, § 171. 6 Commonwealth T. T. & Tr. Co. v. Cummings, 83 Fed. R. 767; Green v. Stone, 54 N. J. Eq. 387; s. c., 34 Atl. R. 1099. 7 Meissner v. Buck, 28 Fed. R. 161; Carnochan v. Christie, 11 Wheat. 446, 447. 8 La Dow v. E. Bement & Sons, 66 Fed. R. 198; Duggar v. Dempsey, 43 Pac. R. 357; s. C., 13 Wash. 396; Bernhard v. Bruner, 65 Ill. App. 641; North British L. & N. Ins. Co. v. Lathrop (C. C. A.), 70 Fed. R. 429. 9 Wood v. Collins, 60 Fed. R. 139. 10 Banque Franco - Egyptienne v. Brown, 24 Fed. R. 106, 107. 1 Meek v. McCormick (Tenn. Ch.), 42 S. W. R. 458. See Cartwright v. Clark, 4 Metc. (Mass.) 104; Derby v. Gage, 38 Ill. 27. 12 Stokes v. Little, 65 Ill. App. 255. 13 Smith v. Woolfolk, 115 U. S. 143, 148; Chamley v. Lord Dunsany, 2 Sch. & Lef. 690, 718; Conry v. Caulfield, 2 Ball & Beatty, 255; Elliott v. Pell, 1 Paige (N. Y.), 263; Langdell's Eq. PL., §§ 155, 156. See § 172. 14 Langdell's Eq. Pl., §§ 155, 156; Talbot v. McGee, 4 Monroe (Ky.), 375, 379; Beach v. Rice, 131 U. S. 293. 15 Kingsbury v. Buckner, 134 U. S. 650, 677. See Griffin v. Griffin, 111 Mich. 538, 70 N. W. R. 423; Feige v. Babcock, 112 Mich. 423, 70 N. W. R. 7. 16 White v. Bower, 48 Fed. R. 186; supra, § 6. 17 Detroit v. Detroit City Ry. Co., 55 Fed. R. 569; Washburn & M. Mfg. Co. v. Scutt, 22 Fed. R. 710. 18 Sharon v. Hill, 22 Fed. R. 28. been made a defendant to a suit to foreclose a subsequent railroad mortgage, cannot foreclose by an independent suit, but must file a cross-bill or a bill in the nature of a cross-bill.20 Where a State of this Union,21 and where a foreign government,22 had sued, it was held that cross-bills might be filed against them. The objection that the relief granted in a decree was improper without a cross-bill cannot be raised in contempt proceedings, nor, ordinarily, for the first time upon an appeal.23 $171. Where a cross-bill should not be filed.-There are two important classes of cases in which the court gives relief to the defendant without a cross-bill. Suits for an account, in which, if it finally appears that the balance is in favor of the defendant, the court will give him a decree for the sum found to be due to him;1 and bills for the specific performance of contracts, in which, if the parties differ as to the terms of the contract, and that question is decided in the defendant's favor, the court will compel the plaintiff to perform the contract thus established. But these exceptions illustrate the rule; for they proceed distinctly upon the theory that the court only entertains such bills upon the condition that the plaintiff will consent to the same justice being rendered to the defendant that he asks for himself; and formerly this consent was required to be expressly given in the bill. So, when a question had been fully litigated between a plaintiff and one defendant, and it appeared that the latter was liable, not to the former, but to a co-defendant, who was himself liable to the plaintiff to the 20 Mercantile Tr. Co. v. Atlantic & 328. A cross-bill is not needed to P. R. Co., 70 Fed. R. 518. authorize an allowance to defendant 21 Port Royal & A. Ry. Co. v. South for improvements made while in Carolina, 60 Fed. R. 552. possession of land. McClaskey v. 22 Roman v. Sharp's Rifle Mfg. Co. Barr, 62 Fed. R. 209. 33 Conn. 31. 23 Kelsey v. Hobby, 16 Peters, 269, 277; Moran v. Hagerman (C. C. A.), 64 Fed. R. 499; Coburn v. Cedar L. L. & C. Co., 138 U. S. 196, 222. § 171. 1 Clarke v. Tipping, 4 Beav. 588; Toulmin v. Reid, 14 Beav. 499; Jervis v. Berridge, L. R. 8 Ch. 357; Campbell v. Campbell, 4 Halst. Eq. (N. J.) 740; Little v. Merrill, 62 Me. 2 Fife v. Clayton, 13 Ves. 546; Stapylton v. Scott, 13 Ves. 425; Bradford v. Union Bank of Tenn., 13 How. 57; Northern R. Co. v. O. & L. C. R. Co., 18 Fed. R. 815. But see S. C., 20 Fed. R. 347. 3 Langdell's Eq. Pl., § 122; Clarke v. Tipping, 4 Beav. 588; Toulmin v. Reid, 14 Beav. 505; Kennington v. Houghton, 2 Y. & C. N. R. 630. |