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. The cross bill is auxiliary to the proceeding in the original suit, and a dependency upon it."

2. Springfield Milling Co. v. Barnard etc. Mfg. Co. (C. C. A.; 1897) 26 C. C. A. 389, 81 Fed. 261: In here discussing the grounds and purpose of cross bills, Sanborn, Circuit Judge, said: "The office of a cross bill is either to warrant the grant of affirmative relief to the defendant in the original suit, to obtain a discovery in aid of the defense in that suit, to enable the defendant to interpose a more complete defense than that which he could present by answer, or to obtain full relief to all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The fact that the cross bill fairly tends to accomplish either of these purposes is generally a sufficient ground for its interposition."

3. Blythe v. Hinckley (1897) 84 Fed. 228, 234: Morrow, Circuit Judge, here stated as follows the four purposes for which a cross bill may be used: "The object of a cross bill is either (1) to bring before the court new matter in aid of the defense to the original bill; (2) to obtain a discovery of facts from the plaintiff or co-defendant in aid of the defense to the original bill; (3) to obtain some affirmative relief as to the matters in issue in the original bill; or (4) to obtain full relief for all parties, and a complete determination of all controversies which arise out of the matters charged in the original bill. The cross bill is auxiliary to the original suit, and a graft and dependency upon it." 4

§ 1017. Cross Bill as Ancillary to Main Suit.

The character of a cross bill as an ancillary and dependent suit and the bearing of this feature of the cross bill on the question of the jurisdiction of the court are elsewhere considered in this work.5

§ 1018. Cross Bill for Purpose of Discovery.

Of the four occasions, enumerated above, for filing a cross bill, there are two that arise very infrequently. The first of these is that which contemplates the discovery of evidence necessary to the making of a proper defense. Discovery in aid of the defense to the original bill is practically an obsolete equity, so far as cross bills are concerned, or at least it can rarely be necessary or desirable to file a cross bill for purposes of discovery only. Under the present practice, the power of the court to compel the parties to give testimony at the instance of their adversary is so complete, and so freely exercised, that no defendant now ever resorts to the cross bill merely to enforce the giving of evidence in his favor.

4 See Weathersbee v. American Freehold etc. Co. (1896) 77 Fed. 523.

See post, chapter XXIX., § 1224,

1019. Cross Bill to Bring In New Matter.

Another occasion, not often arising, for filing a cross bill is that which contemplates bringing before the court new matter in aid of the defense to the original bill; but this sort of cross bill is sometimes desirable. Thus it will occasionally happen that after a cause is at issue something is done, or some transaction is had, the effect of which is to terminate the plaintiff's right to recover. For instance, a release covering the right of action may be executed by the plaintiff to the defendant, or an award may be made by arbitrators, or payment and satisfaction may be made by the defendant, or a decree as to the same matters may be entered in another cause. In such a situation, the defendant cannot usually avail himself of the new matter by answer alone, and hence it becomes necessary for him to file a cross bill. Such a cross bill is in the nature of a supplemental bill; and it is apparently the only purely defensive cross bill known to the law, except the cross bill filed for purposes of discovery, which, as was said above, is practically obsolete.

§ 1020. Affirmative Relief Obtainable Only on Cross Bill.

The two chief ends of the cross bill are, to secure affirmative relief to the defendant in regard to the matters in controversy, and to obtain a complete determination, among all the parties, of all the elements of dispute involved in or connected with the suit. In deciding whether it is desirable or necessary to resort to a cross bill in a given case, the practitioner should have a clear perception of the relief grantable under the answer and cross bill respectively; for the cases are very numerous where the courts have been compelled to turn the defendant away, though his claim appeared to be meritorious, merely because no cross bill had been filed. There are two correlated rules that must be kept well in mind in dealing with this matter. The first is that, generally speaking, affirmative relief will not be granted upon an answer. In an answer, a defendant can pray for no other relief than to be dismissed from court. All other relief must be sought by cross bill."

The other rule-and it is a counterpart and necessary corollary from the former-is that affirmative relief can, generally speaking, be granted in favor of a defendant only upon a cross

6 Gibson, Suits in Chan. (2d ed.) § 727.

7 Weathersbee v. American Freehold etc. Co. (1896) 77 Fed. 523.

8

bill. This is true whether the person against whom the relief is sought is the plaintiff or a co-defendant in the original bill."

Washington Railroad v. Bradley (1869) 10 Wall. 299, 19 L. ed. 894: A petition "by way of cross bill" was put in by one of several defendants. It made no one defendant; nor did it pray for process. A decree entered on this petition as on a cross bill was held to be erroneous. "Without the aid of a cross bill the court was not authorized to decree against the complainants the opposite of the relief which they sought by their bills." The court observed that this was not such an error as was waived or cured by failure to object in the court below.

In a suit to cancel a deed, it has been held that the defendant cannot, by mere answer, procure the conveyance to be carried into effect by the court without the aid of a cross bill.10 The converse of this proposition is also true, namely, on a bill to carry a conveyance into effect, the defendant cannot have a decree of cancellation without a cross bill.11

§ 1021. Election between Cross Bill and Original Proceeding.

One who is entitled to file a cross bill in a particular suit, being a proper party and having an interest to be protected by affirmative relief in his favor, should seek that relief by cross bill; and the court having jurisdiction of the original suit may refuse to entertain an original bill filed in that court to get the same relief. The idea is that the whole controversy should be considered and determined in the first suit.12 In other words, one who can file a cross bill ought to file a cross bill. But it is to be borne in mind that this is a mere point of procedure, relating to the authority and discretion of the court having the main controversy before it. Of course a defendant who fails to file a cross bill in a particular suit is not prejudiced, in the sense that the decree entered in that suit is conclusive against his right to bring a future suit to get affirmative relief, for this he is certainly entitled to do.

§ 1022. Cross Bill Setting Up Defenses Available by Answer.

The filing of a cross bill contemplates the bringing into the suit of some new aspect or branch of the controversy between the parties,

8 Wood r. Collins (C. C. A.; 1894)

8 C. C. A. 522, 60 Fed. 139.

9 Smith v. Woolfolk (1885) 115 U. S. 149, 29 L. ed. 360; Commercial Bank v. Sandford (1900) 103 Fed. 98.

10 Carnochan v. Christie (1826) 11 Wheat. 446, 6 L. ed. 516.

11 Meissner v. Buek (1886) 28 Fed.

161.

12 Sutherland v. Lake Superior Ship

the adjudication of which is appropriate in that suit. If the whole controversy is presented by the bill and answer there is no need for a cross bill; and if one is filed under such conditions, it will be dismissed on demurrer. 13 A cross bill that seeks no discovery and sets up no defense except such as would be available by answer is bad, and the plaintiff in the original bill will not be required to answer it. The cross bill must contain averments sufficient to show a title to the affirmative cross relief asked for or some equitable relief. So far as it sets up purely defensive matter it is objectionable.11

Where a cross bill, so called, contains only defensive matters such as would be available in an answer, it is not absolutely necessary for the plaintiff to demur. The pleading may be treated as an answer, or as part of the answer; and a general replication will include it. But out of precaution it is well to demur, in order to make it clear on the record that such matter is treated as part of the answer.1 15

§ 1023. Answer Setting Up Matter Appropriate for Cross Bill.

As a cross bill is objectionable when it contains matters of defense only, so an answer is bad in so far as it contains matter available only by way of cross bill. It follows that if an answer contains matter that is irrelevant for defensive purposes and that would be available only when pleaded by way of cross bill, such matter may be stricken from the answer on exceptions for impertinence; 16 but the decree should be so framed as to be without prejudice to the defendant's right to file a cross bill.

§ 1024. Ambiguous Answer and Cross Bill.

A defensive pleading is demurrable for uncertainty where one cannot ascertain from its statements whether it is intended to be an answer pure and simple or an answer and cross bill. An answer calls for a replication only, while a cross bill requires an answer: and the plaintiff is entitled to know what step is required of him. A party is not allowed to give his pleading two inconsistent characters.17

Canal, Railroad & Iron Co. (1874) (1893) 100 Cal. 142, 148, 34 Pac. 637. Fed. Cas. No. 13,643.

15 Miller v. Rickey (1906) 146 Fed.

13 Sunset Tel. etc. Co. v. Eureka 579. (1903) 122 Fed. 960.

14 Miller v. Rickey (1906) 146. Fed. 577; American etc. Co. r. Marquam (1894) 62 Fed. 960. See Dickerman v. Northern Trust Co. (1897) 80 Fed. 458, 25 C. C. A. 549; Mills v. Fletcher

16 In Armstrong v. Chemical Nat. Bank (1889) 37 Fed. 466, a motion to expunge was used.

17 Miller v. Rickey (C. C. A.; 1906) 146 Fed, 579,

§ 1025. Relief Grantable on Answer without Cross Bill.

While it is true that a defendant cannot, in general, have distinct affirmative relief except by filing a cross bill, yet this principle must not be taken too literally. There are situations where the nature of the suit itself and the character of relief sought in the original bill are such that the court in disposing of the main case may or must, in a measure, give affirmative relief to the defendant. The court inclines to the method of procedure that expedites the final disposition of the cause with least expense.18

In a

Moran v. Hagerman (C. C. A.; 1894) 12 C. C. A. 239, 64 Fed. 499: bill to impeach an issue of bonds the bondholders were made defendants. They insisted that the bonds were valid. The court found that the bonds were good, a circumstance that would ordinarily have made it proper to dismiss the bill. But meanwhile the mortgaged property was sold; and, upon the subsequent distribution of the fund by the court, it became proper for the defendants to participate in the proceeds. This was permitted, though no cross bill had been filed.19

In a case where affirmative relief may be thus granted under the answer because of its being involved with the proper disposition of the main suit, the defendant may yet file his cross bill if he prefers. Of course where both parties consent, there is no objection to the cross bill being filed.20

§ 1026. Suits for Accounting.

In suits for an accounting, a cross bill is not necessary to entitle a defendant to a decree for any balance found due to him when the accounting is had. The suit for an accounting is peculiar in that respect, and any balance due the defendant may be pleaded in the answer merely.21 By asking for an accounting the plaintiff submits the matter of the account to the jurisdiction of the court, and in effect prays for a decree on the balance in whose favor soever it may be found.

§ 1027. Suits for Infringement of Patent.

The equity practice in patent cases presents a situation where the defendant can substantially obtain affirmative relief without filing

18 Northern Railroad v. Ogdensburg etc. R. Co. (1883) 18 Fed. 815.

19 For other illustrations of cases where affirmative relief is grantable without cross bill, see post, § 1334.

20 Northern R. Co. v. Ogdensburg etc. R. Co. (1884) 20 Fed. 347.

21 Whittemore v. Patten (1897) 84 Fed. 51.