Opinion
11-17-1894
ALLEN et al. v. FURY et al.
C. E. Hendrickson, for complainants. James Buchanan, for defendants.
(Syllabus by the Court.)
Bill by David Allen and others against Charles J. Fury and others for the cancellation of certain stock. Complainants moved to strike out the answer by way of cross bill. Granted.
C. E. Hendrickson, for complainants.
James Buchanan, for defendants.
BIRD, V. G. The original bill in this case was filed for the purpose of obtaining a decree declaring that certain stock which was issued by the defendant the Iron Sides Pottery Company was unlawfully issued, and that the certificates thereof might be declared void, and ordered to be canceled. The defendants answer, and answer by way of cross bill. In their cross bill they set up that because of the depression in trade, and the uncertainty of business in the future, the company decided that certain goods which were in process of manufacture should be completed, and that then all operations of the plant should cease, but that, notwithstanding such decision upon the part of the company, the complainants directed the operations of the concern to be continued, to its detriment; and pray that they may be enjoined from any further interference. Notice of motion to strike out the answer by way of cross bill having been given, the questions arising thereunder are now to be considered. The third and fourth reasons, which are to the effect that the matters introduced in the answer by way of cross bill are entirely separate and distinct from the matter set up in the original bill, and can in no way aid the defendants in their resistance to the original bill, will only be considered. That these objections to the cross bill are well taken appears from the very threshold of the investigation. At the opening of every text-book upon the subject, or reported case, it is made clear that a cross bill must be confined to the subject-matter of the original bill, or in some way connected with it so as to make it a proper subject of defense thereto. In Kirkpatrick v. Corning, 39 N. J. Eq. 136, it was said: "A cross bill is considered as a mode of defense, and must be confined to the subject of the litigation in the original suit, and cannot be the means of instituting a distinct suit in relation to other matters, and cannot become the foundation of a decree as to such matters." Id., 40 N. J. Eq. 343; Sebring v. Conkling, 32 N. J. Eq. 24; Krueger v. Ferry, 41 N. J. Eq. 432, 5 Atl. 452; Carpenter v. Gray, 37 N. J. Eq. 393; 2 Daniel, Ch. Pr. & PI. 1548; Wright v. Miller, 1 Sanf. Ch. 123; Cross v. De Valle, 1 Wall. 14. In Galatian v. Erwin, Hopk. Ch. 66, 67, it is said: "A cross bill is a defense, and, being so considered, is confined to the matters in litigation in the original suit. Without this restriction, new matters might be introduced into a litigation by cross bill, without end." Id., 8 Cow. 361. See, also, Id., 83 Am. Dec. 251, note.