36 Ill. 77 | Ill. | 1864
delivered the opinion of the Court:
After a cause is at issue, if any matter of defense arises, the only mode in which a defendant can avail himself of it is by a cross-bill. Story’s Eq. Plead., sec. 392. The defendants should have filed a cross-bill setting forth the release, and obtained a rule upon the complainant for answer thereto. The complainant would then have had an opportunity to deny the execution of the release, or to admit it and set up matters in avoidance. A replication to such answer would have put the validity of the release in issue. Such proofs as the parties desired to introduce in regard to it should have been made in the usual manner. The court below improperly undertook to hear and determine the case, upon the validity of the release, without pleadings, and upon evidence taken in a manner not allowing of the cross-examination of the witnesses. Askew v. Millington, 9 Hare, 65. The decree of the court below is reversed and the cause remanded.
Decree reversed.
