On Petition for a Rehearing.
Biddle, J.It is urged upon us that we did not decide the point of practice made by the appellees in their original brief, relative to the cross complaint. They insist, as the code does not prescribe the form of a cross complaint, and continues in force the laws and usages of this State in relation to pleading and practice in civil actions not inconsistent therewith, and in aid thereof^ and to supply any omitted case, that the cross complaint should state the original complaint and the proceedings had thereon, and the rights of the parti.es which are necessary to be made the subject of cross litigation, or the grounds on which it resists the claims set up in the original com*117plaint, according to the old chancery practice. Such a practice once prevailed in England, when a cross bill was filed in the Court of chancery to an original bill pending in the court of exchequer, but we are not aware that it was ever the practice in this State, or in America, or even in England, where both the original and cross bills were pending in the same court and in the same suit, as in the case before us. It is true, our code does not prescribe the form of a cross complaint— does not even mention it in terms—yet, when it abolishes the distinction between the forms of actions, prescribes the form of. the complaint, and gives the right to bring a cross action on the same terms with the original cross complaint, we do not think it necessary to resort to an old practice, which never did prevail in this State, to ascertain the form of a cross complaint. Besides, the practice Is expressly settled in Ewing v. Patterson, 35 Ind. 326, wherein this court say : “ The only real difference between a complaint and a cross complaint is, that the first is filed by the plaintiff and the second by the defendant. Both contain a statement of the facts, and each demands affirmative relief upon the facts stated. In the making up of the issues and the trial of questions of fact, the court is governed by the same principles of law and rules of practice in the one case as in the other.”
With the language of the code before us, its spirit pervading our entire judicature, and the well-known fact that the main purpose of it was to relieve the administration of justice from technical embarrassments and useless formalities, as far as practicable, we think this rule eminently proper.
The petitioners also insist most strenuously, that their answer to the original complaint is sufficient to abate that branch of the action, according to the judgment of the court below. Besides what has been said concerning that answer in the opinion already pronounced, let us examine it more closely. In the first place, it is a dilatory plea. All dilatory pleas must be construed strictly. No intendment can be taken in their favor. What is not properly averred within them must be held as against them. This answer sets up the pendency *118of the cross complaint in abatement of the original complaint, yet it nowhere avers on what gi’ound the cross complaint rests, or what relief it prays. True, it says that in the cross complaint “ substantially the same relief is prayed that the plaintiffs seek in' and by their original complaint.” This averment cannot be held good, even though it stated the grounds upon which the relief is sought. It is not well pleaded. If traversed, it would only present the issue whether the relief prayed for in the cross complaint is the same as that prayed for in the original complaint; not whether the grounds and the prayer in the cross complaint are sufficient to authorize the same relief prayed for in the original complaint.
It must be remembered that we cannot look to the cross complaint in aid of the answer to the original complaint. The cross complaint is not, nor is any portion of it, made a part of the answer. The answer must stand by itself—by the averments on its face which are well pleaded—or it must fall. We adhere firmly to the principle, that when a corporation brings suit on behalf of the company, a stockholder, while such suit is pending, cannot maintain another suit against the same parties, 'grounded on the same cause of action and seeking the same relief; but the averments in this answer, as they aré pleaded, do not bring it within the rule.
Again,- the answer is pleaded in abatement of the action, and the judgment of the court below puts an end to the suit, while the answer, if good at all, is good only -as a plea in suspension of the action. “A plea in suspension of the action is one which shows some ground for not proceeding with the suit at the present period, and prays that thé pleading may be stayed until that ground be removed.” Steph. PI. 47.
“ There are certain legal disabilities, which disqualify the subjects of them to prosecute suits; and which are therefore pleadable ‘to their disability’ as plaintiffs. Some of these entirely defeat the suit; while others only suspend it, quousque —until the disability be removed. * * * If the disability existed, when the cause of action accrued, it has the effect of totally defeating the suit; which, in such a case, was improper *119imits commencement. But the disability, when it commences after the accruing of the cause of action, is only a temporary impediment, which does not absolutely destroy the • suit; for as the action in this case is rightly commenced, the supervening disability has no other effect, than that of suspending the proceedings in it, until the impediment is removed.” Gould PL 223, 224.
“ There were instances in which the right of action and even the present suit were suspended only, and not destroyed, and when the matter could only be pleaded in abatement, and the plea should conclude si responden debet quousque, eto., and when the disability is removed the suit will proceed. * * * A plea of this nature was termed, and was for the most purposes a plea in abatement; but in this respect it was dissimilar, that it operated only as a temporary suspension of the present suit, and did not, like the generality of pleas in abatement, allege matter, which, although it gave a better and another action, had the effect of destroying altogether the suit in which it is pleaded.” 1 Chitty Pl. 447.
Pleas in suspension of the action seldom occur in practice, and are therefore not readily found in the reported cases, but see Oremer v. Wicket, 1 Ld. Raymond, 550, and Faulkland v. Stanion, 12 Mod. 400. It .is not in the power of a defendant to abate a suit properly brought against him in the commencement, by afterwards creating a state of facts against the ability of the plaintiff to sue; and there can bo no doubt of the right of the plaintiffs in this case to sue at the time they filed their original complaint.
The appellees seem to think that we ought to have decided the general question, whether railroad companies can lease their roads under the laws of this State. It is said that on account of the supposed uncertainty of the decision on this question, business is discouraged, enterprise embarrassed, capital cautious and timid, labor unemployed and restless, and industry generally depressed. When such a question is properly raised before us upon a lease made for the legitimate purposes of commerce and travel, and in accordance with the *120proper use of railroads, it will be our duty to decide whether such a lease is authorized and can be upheld by the laws of this State. It must be remembered that courts can decide nothing but what is fairly within the record in each given case. It may be reasonably supposed that all similar cases, falling within the same principle, will be decided in the same way. Farther than this courts cannot go.
But, while it is insisted that we have not decided the general question, it is also stated that we have decided questions not fairly made by the averments in the pleadings. We think differently. The general directions, the crossings, and connections, and the termini of the several railroads involved in the case are alleged; the geography of the country through which they pass, and their relations to given points, must be known to us judicially, and the proper application made, without further averments or proof. It does not seem to us that we have decided anything outside of the record, or left undecided any question properly within the record.
But it is earnestly argued that our decision in this case is in conflict with former decisions of this court, especially so with the cases of Smead v. The Indianapolis, Pittsburgh, and Cleveland P. P. Co., 11 Ind. 104, and The State Board of Agriculture v. The Citizens Street Railway Co., 47 Ind. 407.
The former of these two cases was briefly and simply this: The Indianapolis and Bellefontaine Railroad Company agreed to accept certain bills of exchange to be drawn upon it by the Greenville and Miami Railroad Company, in consideration that the latter road would adopt and maintain the guage of the former road, for the purpose of operating the roads interchangeably and forming a continuous line, the roads having authority to- thus unite and form a running connection. The bills were drawn and accepted, and the guage adopted as agreed. On suit brought upon the bills by Smead as the holder, the former pleaded its want of power to make the acceptances, but was held liable.
In the latter of the two cases, the Citizens Street Railway Company made its subscription to the State Board of Agri*121culture, upon the condition that said board would locate and hold the annual state fair on certain grounds north of Indianapolis, for three years. The board having performed its part of the agreement, it was held, that the Street Eailway Company was liable on its subscription.
In these cases, the want of power was pleaded in favor of the corporation to defeat the payment of the consideration for benefits which it had received and enjoyed. Inthisclass of cases, the courts will go as far as is consistent with the fixed rules of law to reach the justice, equity, and good conscience of the case.
In the case under consideration, the want of power was pleaded against the corporation to prevent the perpetration of an alleged wrong. In such cases, the courts will hold corporations to the strictest rules of law. There is a wide difference between the two lines of cases. The right, which justice seeks and law endeavors to uphold, lies, in -each line, in opposite directions, and must be sought by different ways. In one, the decisions protect right, and in the other they prevent wrong, and thus they are made consistent. In both, they are based on the fundamental principle in jurisprudence, that no one shall take advantage of his own wrong.
Upon full argument, after careful deliberation, and with a due sense of the importance of the decision, we overrule the petition.