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FEDERAL

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

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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 weapon." Miller v. Rickey (1906) 146 Fed. 574, 580.

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

3 Gibson, Suits in Chan. (2d ed.) § 725.

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