The answer of the defendant, so far as it set up a set-off and counter claim, and prayed for a judgment against the plaintiff for the amount alleged to be due, was not a cross-complaint within the meaning of Sections 38, 46, 50, 65, of the Practice Act, and, therefore, was not required to be answered by the plaintiff. This precise point, in a case strictly analogous) was decided in Herold v. Smith (34 Cal. 122), and we see no reason to disturb the ruling in that case. There was, therefore, no error in refusing to enter a default against the plaintiff for want of an answer; and no .injury resulted to the defendant from afterward permitting the plaintiff to reply to the answer, inasmuch as the replication consisted only of denials, which the law would have implied, if there had been no replication.
Nor can we disturb the judgment on the ground that the Court erred in denying the defendant’s motion for a new trial. The evidence alleged to have been newly discovered was not only cumulative in its character, but there was no showing of sufficient or of any diligence to discover it before, or to produce it at the trial. The paper marked “Exhibit A,” *586which was admitted, in evidence, was not signed by the defendant, and was in no legal sense a promissory note; but was properly admitted as evidence of an account stated, and needed no stamp under the United States Internal Revenue Law. Nor was there any error in admitting, secondary evidence of the contents of the bill of sale from Richard Jones to the defendant. The plaintiff was not entitled to its custody, and as it was a paper made to the defendant, it was properly presumed to he in his possession. When notified to produce it, he disclaimed all knowledge of it. Under these circumstances, the plaintiff was entitled to prove its contents by secondary evidence.
On the whole, we find no error in the record.
Judgment affirmed.