Port Royal & A. Ry. Co. v. State of South Carolina

• Decision Date: 06 March 1894
• Citation: 60 F. 552
• Parties: PORT ROYAL & A. RY. CO. v. STATE OF SOUTH CAROLINA.
• Court: U.S. Court of Appeals — Fourth Circuit

60 F. 552

PORT ROYAL & A. RY. CO. v. STATE OF SOUTH CAROLINA.

United States Circuit Court, D. South Carolina.

March 6, 1894

Mitchell & Smith and Lawton & Cunningham, for complainant.

O. W Buchanan, Atty. Gen., and Smythe & Lee, for defendant.

SIMONTON Circuit Judge.

There can be no doubt that a suit cannot be instituted in this court against a sovereign state of the Union without its consent. The whole point, therefore, turns upon the further question, is a cross bill a suit? Story (Eq. Pl. § 399) says:

'A cross bill is a defense to an original bill, or a proceeding necessary to a complete determination of a matter already in litigation. It is treated as a mere auxiliary suit, or as a dependency upon an original suit.'

A cross bill, says Mitford (Eq. Pl. 99, pp. 81, 82), is considered as a defense or as a proceeding to procure a complete determination of a matter already in litigation. Foster (Fed Pr. § 169) gives the same definition. Daniell (Ch. Pr. [3d Eng. Ed.] 1647) gives this definition:

'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 seek, he must do so by a bill of his own,--what is called a 'cross bill.' 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 depending on the original suit, and can be sustained only on matter growing out of the original bill.'

In Ayres v. Carver, 17 How. 595:

'A cross bill should not introduce new and distinct matters not embraced in the original bill, as they cannot be properly examined in that suit, but constitute the subject-matter of an original, independent suit.' And in that case, giving the same definition of a cross bill as is given by Daniell, the supreme court, as a corollary, thereupon approve the saying of Lord Hardwicke, quoted in Field v. Schieffelin, 7 Johns. Ch. 252, 'that both the original and cross bill constituted but one suit, so intimately are they connected with each other.'

A sovereign state cannot be forced into court against her consent; but a cross bill presupposes that the plaintiff is already in court rightfully, and when the state comes into court of her own accord, and invokes its aid, 'she is, of course, bound by all the rules established for the administration of justice between...