the new occurrence which creates the bar, that the suit is, notwithstanding, proceeded with, and that the complainant in the cross bill cannot use the defense as a plea in bar, and should pray a subpoena, to the end that the premises may be answered, and the new defense declared a sufficient bar to any further proceedings, and that therefore the original bill be forthwith dismissed with costs.42 An answer cannot be deemed a cross bill because it contains a request that it be so taken. To be treated as a cross bill, it must have all the substantial requisites of a cross bill.44 Where a cross bill filed by one defendant brings the entire subject of litigation before the court, a second cross bill by another defendant is unnecessary, and is properly dismissed.45

§ 902. Form of cross bill in divorce suit (Illinois).

To the Honorable the Judges of the Circuit Court of Cook County, in

the State of Illinois, in Chancery Sitting:

42 2 Barbour, Ch. Pr. 131.

43 Ballance v. Underhill, 4 Ill. 453; Purdy v. Henslee, 97 Ill. 389. 44 Purdy v. Henslee, 97 Ill. 389. It has been said that it is not neo essary, however, that the cross bill should be on a separate paper. It the defendant in his answer, has fully answered the bill, he may state new matter entitling him to affirmative relief, and pray in the answer for the appropriate relief. Thielman v. Carr, 75 Ill. 385. But conced ing that there is no objection, after concluding the answer, to proceeding on the same piece of paper, and stating the matter of the cross bill, the statement should be sufficient to constitute a cross bill if disconnected, and a proper heading attached. Purdy v. Henslee, 97 Ill. 393. For cases considering answers as cross bills, see Marr v. Lewis, 31 Ark. 203, 25 Am. Rep. 553; McConnell v. Hodson, 7 11. 640; Wilson's Heirs v. Bodley, 2 Litt. (Ky.) 55; Young v. Twigg, 27 Md. 620; Cox v. Leviston, 63 N. H. 283; Passumpsic Sav. Bank v. First Nat. Bank of St Johnsbury, 53 Vt. 82; McMullen v. Eagan, 21 W. Va. 233.

Your oratrix, A. B.. of the city of Chicago, county of Cook, and state of Illinois, respectfully represents unto your honors that on, to-wit, the 15th day of June, A. D. 1900, C. B., of said city of Chicago, county and state aforesaid, the defendant hereinafter named, exhibited and filed in this honorable court his bill of complaint against your oratrix, to obtain a divorce against your oratrix on the alleged ground that your oratrix willfully deserted and absented herself from the said C. B., without any reasonable cause, for the space of two years and upwards, and had persisted and continued in such desertion up to the time of the filing of said bill, and thereby praying that the marriage between your oratrix and the said C. B. may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided, and that the said C. B. may have such other and further relief as equity may require, and to your honors shall seem meet. And your oratrix, being duly served with process, appeared and put in her answer thereto, as by the said bill and other pleadings in the said cause now remaining on file and of record in this honorable court, reference thereto being had, will more fully appear.

Your oratrix further represents unto your honors that she is an actual resident of said county of Cook, and is and has been a resident of the state of Illinois for more than five years last past; that on, towit, the 10th day of May, 1895, at the city of Chicago aforesaid, she was lawfully married to said C. B., and from that time until the 1st day of January, 1896, your oratrix lived and cohabited with the said C. B. as his wife, and during all that time faithfully performed all her duties and obligations as a wife, striving to make the home of herself and the said C. B. comfortable and happy; that on, to-wit, the 1st day of January, 1896, becoming acquainted with the facts hereinafter set forth, she left the said C. B., and has refused to live and cohabit with him since that time.

Your oratrix further represents that the said C. B., wholly regardless of his marriage duty, obligations, and plighted faith, has for a considerable time past, and subsequent to the said marriage, to-wit, from November 1, 1895, given himself up to adulterous and licentious practices, and that on, to-wit, December 31, 1895, at the city of Chicago, in the county of Cook and state of Illinois, he, the said C. B., committed adultery and had carnal connection with one E. F., and has at divers other places and times since said marriage, to your oratrix unknown, committed adultery with the said E. F., and with divers other lewd women, whose names are also to your oratrix unknown. Forasmuch, therefore, as your oratrix is without remedy in the premises, except by filing this, her cross bill in the said proceedings commenced by the said C. B. against your oratrix, and to the end

45 Gilman v. New Orleans & S. R. Co., 72 Ala. 566. See Weed v. Smull, 3 Sandf. Ch. (N. Y.) 273; Bogle v. Bogle, 3 Allen (Mass.) 158.

that the said C. B., who is hereby made party defendant to this cross bill, may be required to make full and direct answer to the same, and that the said marriage between your oratrix and the defendant, C. B., may be dissolved and declared null and void by the decree of this court, according to the statute in such case made and provided, and that your oratrix may have such other and further relief in the premises as equity may require, and to your honors shall seem meet:

May it please your honors to enter an order in the above-entitled cause, requiring the said defendant, C. B., to make full and direct answer to this cross bill within a short day, to be fixed by the court. And this your oratrix will ever pray, etc.

A. B., Cross Complainant.

G. H., Solicitor for A. B., Cross Complainant.46

§ 903. Form of cross bill in the nature of plea puis darrein continuance.

[Title of court and causes, and address to the court as in last form.] Your orator, A. B., of the city of Chicago, county of Cook, and state of Illinois, respectfully represents unto your honors that C. D., of the city of Chicago, in the county and state aforesaid, the defendant hereinafter named, did, on or about the 1st day of January, A. D. 1900, file his bill of complaint in this honorable court against your orator, thereby praying [state the prayer of the bill]; and your orator, being duly served with process, appeared and put in his answer thereto, to which answer the said C. D. filed a replication, and, issue being thus joined, witnesses were examined on both sides, and the proofs closed, whereupon the said cause was set down for hearing, as by the said bill and other proceedings in the said cause now remaining as of record in this court, reference thereunto being had, will more fully appear.

And your orator further shows unto your honors that the said cause has not yet been heard, and on or about the 1st day of August, 1900, the said C. D., by a certain writing of release, bearing date the 31st day of July, 1900, did remise, release, and forever quitclaim unto your orator, his heirs, executors, and administrators, the several matters and things complained of in and by said bill of the said C. D., and in question in the said suit, and each and every of them, and of all sums of money then due and owing, or thereafter to become due and owing, together with all and all manner of actions, causes of action, suits, and demands whatsoever, both at law and in equity, or otherwise howsoever, which he, the said C. D., then had, or which he should or might, at any time or times thereafter, have, claim, allege, or de

46 If a subpoena, instead of a rule, is required to bring defendant into court, the same must be prayed for. See supra, § 69.

mand against your orator, for or by reason or means of any matter, cause, or thing whatsoever, from the beginning of the world to the day of the date of the said deed or writing of release, as by the said release, reference being thereunto had, and a copy of the same hereto attached, marked "Exhibit A," and made a part of this cross bill, will appear. And your orator hoped that, in consequence of the said release, the said C. D. would not have proceeded in the said suit against your orator, but the said C. D., notwithstanding the said release, threatens and intends to proceed in the said suit, and to bring the said cause on for hearing in due course, and he pretends that no such release was ever executed by him. or, if so, that the same was obtained by fraud and surprise, and therefore void; whereas, your orator charges that the same was in every respect fairly and properly obtained by your orator, and duly executed by the said C. D.

And your orator further charges that, under the circumstances aforesaid, he is unable to put the said release in issue, or to use the same as a plea in bar in said suit. All which actings and pretenses are contrary to equity and good conscience, and tend to the injury and oppression of your orator.

Forasmuch, therefore, as your orator is without remedy in the premises, except in a court of equity, and to the end that the said C. D., who is made a party defendant to this cross bill, may be required to make full and direct answer to the same, but not under oath, the answer under oath being hereby waived, that the said release may be established and declared by this court a sufficient bar to any further proceedings by the said C. D. in the said suit, and that the bill of the said C. D. therein may, under the circumstances, be forthwith dismissed, with costs, and that your orator may have such other and further relief in the premises as equity may require, and to your honors shall seem meet:

May it please your honors to enter an order requiring the said de fendant, C. D., to make full and direct answer to this cross bill within a short day to be fixed by the court. [If summons instead of rule is re quired, pray for same.]

And this your orator will ever pray, etc.

A. B.,

Cross Complainant.

G. H., Solicitor for A. B., Cross Complainant.

§ 904. Process upon cross bill.

The party filing a cross bill must take the steps necessary to have it answered.47 Independently of statute, the appearance of a defendant to a cross bill is enforced in the same man

47 Purdy v. Henslee, 97 Ill. 389; Reed v. Kemp, 16 Ill. 445.

ner as that of a defendant to an original bill.8 Where no steps are taken under a cross bill after it is filed, and the parties voluntarily go to a hearing, the cross bill may be regarded as abandoned.49 There is no duty imposed upon defendants in a cross bill, who are parties to the original suit, to answer the cross bill until called upon by the complainant therein, and by rule of court so to do.50

§ 905. Demurrers to cross bill.

A cross bill having nothing in its nature different from an original bill, with respect to which demurrers in general have been already considered, except that it is occasioned by a former bill, there seems to be no cause of demurrer to such bill which will not equally hold to an original bill. But the converse of this proposition is not universally true. A demurrer for want of equity will not hold to a cross bill filed by a defendant in a suit against the complainant in the same suit touching the same matter.51 Where the cross bill is brought forward by way of defense, want of equity therein is no defense thereto.52 Where a cross bill seeks relief which is of an equitable nature, if it does not contain all proper allegations which confer an equitable title to such relief upon the party, it will be open to demurrer.53 If a cross bill seeks to bring before the court mat

48 Ballance v. Underhill, 4 Ill. 453; Washington R. Co. v. Bradleys, 10 Wall. (U. S.) 299; Smith v. Woolfolk, 115 U. S. 143; Thomason v. Neeley, 50 Miss. 310.

49 Hungate v. Reynolds, 72 Ill. 425; Purdy v. Henslee, 97 Ill. 395. For substituted service on cross bills, see supra, § 129.

50 Michael v. Mace, 137 Ill. 485, 27 N. E. 694. It is error to render a final decree upon the filing of a cross bill, granting the relief thereby sought, without giving to the defendants thereto reasonable time in which to interpose a defense. Western Union Telegraph Co. v. Pacific & Atlantic Telegraph Co., 49 Ill. 90.

51 Story, Eq. Pl. § 628; 2 Barbour, Ch. Pr. 133.

52 Wing v. Goodman, 75 Ill. 159; Lambert v. Lambert, 52 Me. 544; Gilmer v. Felhour, 45 Miss. 627.

68 Story, Eq. Pl. § 630; 2 Barbour, Ch. Pr. 133; Mason v. Gardiner,

4 Brown, Ch. 436; Hickson v. Aylward, 3 Moll 1: Cooper, Eq. PL 215; Calverley v. Williams, 1 Ves. Jr. 213.