Lambert v. Lambert , 52 Me. 544 ( 1864 )

The opinion of the Court was drawn by

Walton, J.

It sometimes happens that a defendant in equity suits has matter of défence which can be made available only by a cross bill. Matter of defence arising after the cause is at issue, and which, in suits at law, would furnish matter for a plea puis darrein continuance, can be made available in this way only. The cross bill in this case is of this description. It sets up a ground of defence happening after the former pleadings were filed; namely, an assignment by the plaintiff of all his interest in the subject matter of the suit. Such an assignment, although brought to the knowledge of the Court by a cross bill, is a valid defence to the original bill. Instead of answering this bill as he ought, the plaintiff demurs, assigning for cause of demurrer want of equity. But want of equity is no defence to a cross bill brought forward by way of defence. (Story’s Equity Pleadings, § 628.) The demurrer, therefore, should be overruled. But, in equity, the overruling of a demurrer is never followed by a decree making a final disposition of the case ; the order is that the party demurring answer further. The entry in this case should be : —

" Demurrer to cross bill overruled — further answer required.”

Appleton, C. J., Cutting, Davis and Barrows, JJ., concurred.