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EQUITY PRACTICE

A Treatise on the Pleadings Used and Practice Followed in Courts
of the United States in the Exercise of their Equity Jurisdiction

BY

THOMAS ATKINS STREET, A. M., LL. B.

PROFESSOR OF EQUITY IN THE UNIVERSITY OF MISSOURI. AUTHOR OF "THE FOUNDATIONS OF LEGAL

LIABILITY." CONSULTING EDITOR OF THE AMERICAN AND ENGLISH ENCYCLOPÆDIA OF LAW AND

PRACTICE

In Three Volumes

Volume II

.

EDWARD THOMPSON COMPANY
NORTHPORT, LONG ISLAND, N. Y.

Copyright 1909

By

Edward Thompson Company

176528

EQUITY PLEADING AND PRACTICE

IN FEDERAL COURTS.

VOLUME II.

CHAPTER XXIV.

CROSS BILL.

Gencral Principles Governing Use of Cross Bill. § 1015. When Cross Bill Necessary.

1016. Nature of Cross Bill. 1017. Cross Bill as Ancillary to Main Suit. 1018. Cross Bill for Purpose of Discovery. 1019. Cross Bill to Bring In New Matter. 1020. Affirmative Relief Obtainable Only on Cross Bill. 1021. Election between Cross Bill and Original Proceeding. 1022. Cross Bill Setting Up Defenses Available by Answer. 1023. Answer Setting Up Matter Appropriate for Cross Bill. 1024. Ambiguous Answer and Cross Bill. 1025. Relief Grantable on Answer without Cross Bill. 1026. Suits for Accounting. 1027. Suits for Infringement of Patent. 1028. Necessity for Cross Bill as Affected by Failure of Plaintiff to Object. 1029. Discretion of Appellate Court to Dispense with Cross Bill.

Subject-Matter of Cross Bill. 1030. Cross Bill Must Be Germane. 1031. Must Not Make Multifarious Issue. 1032. Illustrations of Germane Issues Proper for Cross Bill. 1033. Cross Bill May Introduce New Facts. 1034. Scope of Cross Bill in Complicated Litigation. 1035. State Statute as Affecting Right to Maintain Cross Bill. 1036. Multifarious Issues Not Proper for Cross Bill. 1037. Dismissal of Non-germane Cross Bill on Demurrer. 1038. Cross Bill and Cross Bill in Nature of Original Bill. 1039. Practice on Cross Bill in Nature of Original Bill. 1040. Germane Cross Bill Need Not State Cause of Equitable Cognizance.

$ 1041. Cross Biji in Nature of Original Bill Must State Cause of Equitable

Cognizance.
1042.. ipss. Plaintiff Not Restricted to Equitable Relief.

General Principles Governing Use of Cross Bill.

§ 1015. When Cross Bill Necessary.

The proceedings and pleadings thus far described as being avail-

able to the defendant are of a purely defensive character, their sole
function being to defeat the plaintiff's case. Situations arise, how-
ever, in which it is good policy for the defendant to become an aggres-
sor, as a counter attack sometimes supplies a more effectual means of disposing of an assailant than the ordinary defensive tactics. When a defendant in equity wishes to adopt this mode of proceeding, the demurrer, plea, or answer will not serve his purpose. Those forms of pleading are shields, not weapons of offense. This is especially true of the answer. The function of an answer is to make a defense to the case made in the bill. A defendant by means of an answer cannot become a plaintiff and seek affirmative relief, either against the plaintiff or his own co-defendants.2

Accordingly, in such emergency, the plaintiff has recourse to a cross bill. By this means he becomes plaintiff in turn, and seeks relief from the plaintiff in the original bill. The proceeding by cross bill is in every respect analogous to the proceeding by original bill, the relative position of the parties being changed pro hac vice. The result of the filing of a cross bill is, simply, that from this juncture the suit comprises two interrelated and consolidated proceedings.

$ 1016. Nature of Cross Bill.

A cross bill, as its name implies, is a bill brought by a defendant against the plaintiff in the same suit, or against the plaintiff and other defendants in the same suit, touching the matters in question in the original bill. A bill of this kind is usually brought, either (1) to obtain a necessary discovery of facts, or (2) to bring before the court new matter in aid of the defense to the original bill, or (3) to obtain full relief for all the parties to the matters in controversy, or (4) to obtain some affirmative relief touching the matter of the original bill. A cross bill that seeks no discovery or relief, and makes no defense that is not equally available by way of answer to the original bill, is unnecessary, and will be dismissed on motion or demurrer.3

1. Ayres v. Carver (1855) 17 How. 591, 15 L. ed. 179: In this case Mr. Justice Nelson stated the nature and function of the cross bill in language often quoted. Said he: "A cross bill is brought by a defendant in a suit against the plaintiff in the same suit, or against other defendants in the same suit, or against both, touching the matters in question in the original bill. It is brought either to obtain a discovery of facts, in aid of the defense to the original bill, or to obtain full and complete relief to all parties, as to the matters charged in the original bill. It should not introduce new and distinct

1 "An answer is a shield, not a weap- 3 Gibson, Suits in Chan. (2d ed.) on.” Miller v. Rickey (1906) 146 Fed. $ 725. 574, 580.

2 Chapman v. School District (1865) Fed. Cas. No. 2,607.

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