author: Mr. Justice Walker Mr. Justice Dickey,

text:
    George Hankins v. The People of the State of Illinois.

      Filed at Ottawa June 16, 1883.

    1. Statutes—rule of construction—strict construction of penal statutes, or those relating to crimes. The doctrine of strict construction of statutes imposing penalties and fines has heen long established and uniformly applied by this court.
    2. Section 1 of the act relating to statutes, providing that "all general provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may be fully carried into effect, ” applies to all statutes,—those defining crimes and providing for their punishment, as well as others. It does not require the court to briijg cases of a like nature, not named in terms or by clear implication, into a Statute, nor yet to give a narrow and restricted meaning to the language employed, but to fairly and reasonably cany out the legislative intent.
    3. Same—construction as to effect of excluding a particular matter. As a general rule the exclusion of one subject or thing in a statute is the inclusion of all other things. So the exclusion of the power of the court to impose a fine of less than $100, by implication gives the power to impose a fine for more than that sum.
    4. Criminal law—penalty for keeping gaming house—of the limit for the first offence—the statute construed. Under section 127 of the Criminal Code, providing for the punishment for keeping a gaming house, etc., which provides that for the first offence the offender shall be fined not less than $100, and for the second offence not less than $500, etc., the court is not limited to a fine of $100 on a conviction for the first offence. It seems, however, that such fine might well be regarded as limited in so far that it shall not be for a larger sum than that authorized for a second conviction.
    5. Same—giving courts the power to determine as to the degree of punishment. While it is true that the defining of crimes and prescribing the punishment therefor is a legislative function, it does not follow that the legislature is powerless to authorize the courts or juries to exercise a discretion in fixing the amount or degree of punishment, between prescribed limits. Such power has heen conferred on all courts administering the criminal law. To deny the courts this power would be to defeat the constitutional provision that penalties shall be proportioned to the offence.
    6. Same—of special pleas—defences allowable under plea of not guilty. The 423d section of the Criminal Code has dispensed with all pleas in criminal cases except the plea of not guilty, unless it be pleas in abatement, etc. Under the plea of riot guilty the defendant may avail himself of any meritorious defence he may have. Under it he may show a former conviction or acquittal of the same offence, and hence there is no error in sustaining a demurrer to a plea of a former conviction.
    7. Same—misdemeanors—jurisdiction of the circuit courts, and of justices of the peace. Section 381 of the Criminal Code does not confer exclusive jurisdiction on justices of the peace in all cases of misdemeanors where the punishment is by fine only, and the fine does not exceed $200. If such section had so intended, it would have been in violation of section 12 of article 6 of the constitution, which gives circuit courts original jurisdiction of all cases at law and in equity.
    8. Same—the same act as two offences, and cognizable under two separate jurisdictions. It has long been the settled law in this State that the legislature may rightfully declare the same act to be two offences, and punishable as such. The fact that a city is empowered to punish the keepers of gaming houses by ordinance, is no bar to a separate prosecution for the same offence under the Criminal Code, by the people. The grant of power to a city to punish for misdemeanors committed within its limits, is not a surrender of the power of the State to also punish for the same offence.
    9. Same—former decisions. The principle that the same act may be declared to constitute two offences, and to be cognizable under two separate jurisdictions, is sustained by Freeland v. The People, 16 Ill. 380, Severin v. The People, 37 id. 414, Skidmore v. Bricker, 77 id. 164, and Wragg v. Penn Township, 94 id. 12, which overrule the doctrine announced in Berry v. The People, 36 Ill. 223.
    Writ of Error to the Appellate Court for the First District ;—heard in that court on writ of error to the Criminal Court of Cook county; the Hon. Joseph E. Gary, Judge, presiding.
    Mr. Emery A. Stores, for the plaintiff in error:
    The fine provided by the statute in this class of cases is “not less than $100.” Rev. Stat. (Cothran’s ed.) Crim. Code, sec. 127, p. 470.
    This being a penal statute, it must be strictly construed. Rapplee v. Morgan, 2 Scam. 551; Edivards v. Hill, 11 Ill. 23; Chapman v. Wright, 20 id. 120; Frees v. Tripp, 70 id. 496; Albrecht v. The People, 78 id. 510; Hall v. State of Ohio, 20 Ohio, 7; United States v. Storr, 1 Hemp. 469; Ferritt v. At

      well, 1 Blatchf. 151; Bettis, Admr. v. Taylor, 8 Porter, 564; Andrews v. United States, 2 Story, 202.
    The fine provided for such cases as this being “not less than $100, ” it is a penalty of $100 and no more. Stinson v. Pond, 2 Curtis’ C. C. (Mass.) 502.
    The lower court, by imposing a much heavier fine,—$250 and costs,—transcended the^ limit conferred by the statute. The court therefore erred, and the judgment should be reversed. Fitzgerald v. State, 4 Wis. 395; Harvey v. State, 5 id. 529; Taylor v. State, 35 id. 298.
    All such statutes are to receive a strict construction, and can not be extended to embrace cases not named, or to increase the punishment. United States v. Morris, 13 Pet. 464; United States v. Wiltberger, 5 Wheat. 76; United States v. Sheldon, 2 id. 114; Potter’s Dwarris on Statutes, 128, 144; King v. Burrill, 12 Ad. & Ell. 468; Lamond v. Effie, 3 Q. B. 910; Everett v. Mills, 4 Scott’s N. C. 531; Green v. Wood, 7 Q. B. 178; Samuel v. Nettleship, 3 id. 188; “The Enterprise,” 1 Paine, 32; Chase v. New York Central R. R. Co. 26 N. Y. 523 ; In re Powers, 25 Vt. 265; Water Vliet Turnpike Co. v. McKean, 6 Hill, 616; Melody v. Reab, 4 Mass. 473; Rapplee v. Morgan, 2 Scam. 563.
    Original jurisdiction in all eases of misdemeanor, when the punishment is by fine only, not exceeding $200, is conferred upon justices of the peace. Bev. Stat. (Cothran’s ed.) Grim. Code, see. 381.
    By act of legislature, authority is conferred upon the city of Chicago (sec. 45, art. 5, Municipal Code, p. 21,') “to suppress gaming and gambling houses.” Section 1307, article 23, ordinances of the city of Chicago, page 309, provides for just such cases as thisz.
    The defendant having been acquitted under this ordinance, can not be again put upon trial for the same offence. Berry v. People, 36 Ill. 423; Houston v. Moore, 1 Wheat. 1.

      Mr. Luther Laplin Mills, State’s Attorney, and Mr. W. E. Leffingwell, for the People:
    The statute has changed the common law rule that a penal statute must be strictly construed. Rev. Stat. chap. 131, see. 1. See, also, Robbins v. People, 95 Ill. 176; Stevens v. People, 67 id. 588.
    All penalties shall be proportioned to the nature of the offence. Const. 1870, art. 1, sec. 11.
    Circuit courts shall have original jurisdiction of all causes at law and in equity. Const. 1870, art. 6, sec. 12.
    The legislature may create two or more offences, which may be committed by a single act, each of which is punishable by itself. Wragg et al. v. Penn Township, 94 Ill. 23.
   Mr. Justice Walker

delivered the opinion of the Court:

The indictment in this case was for keeping a gaming house, contrary to the provisions of the statute. Section 127 of the Criminal Code is as follows: “Whoever keeps a gaming house, or in any building, booth, yard, garden, boat or float, by him or his agent used and occupied, procures, or permits any persons to frequent or come together to play for money or other valuable thing at any game, or keeps, or suffers to be kept, any tables or other apparatus for the purpose of playing at any game or sport for money or other valuable thing, or knowingly rents such place for such purpose, shall, on conviction, for the first offence, be fined not less than $100, and for the second offence be fined not less than $500, and be confined in the county jail not less than six months, and for the third-offence shall be fined not less than $500 and be imprisoned in the penitentiary not less than one year and not more than five years.” On being tried in the Criminal Court of Cook county, plaintiff in error was convicted, and fined $250. The case was removed to the Appellate Court for the First District, and the judgment was affirmed, and the record is brought to this court on error.

Various objections are urged. It is first insisted, that under the statute the Criminal Court exceeded its jurisdiction by imposing a fine of more than $100. It is claimed that sum is the amount of the fine fixed by the statute, and the court is powerless to exceed that amount on such a conviction; -that under the canons of construction the section must be read as though it said $100, and no more; that such statutes must be strictly construed, and therefore no greater amount than that sum could be imposed. The doctrine of strict construction in cases of penalties has been long, and uniformly established in this court. Wilson v. Ohio and Mississippi R. R. Co. 64 Ill. 542, Edwards v. Hill, 11 id. 22, Erlinger v. Boneau, 51 id. 94, Chicago and Alton R. R. Co. v. The People, 67 id. 11, Chicago and Northwestern R. R. Co. v. Stanbro, 87 id. 195, Raplee v. Morgan, 2 Scam. 561, Chapman v. Wright, 20 id. 120, Freese v. Tripp, 70 id. 496, Albrecht v. The People, 78 id. 510, and many other cases not necessary to be referred to, as this is the doctrine of this court, independent of the reported eases of other courts. The doctrine is so elementary and well recognized that it does not need other authorities for its support.

This court has, in two cases heretofore before us for decision, affirmed judgments for fines of more than $100 on convictions under this section. (See Robbins v. The People, 95 Ill. 175, and Stevens v. The People, 67 id. 587.) It is true in neither of those cases was the question under consideration presented or discussed, but they are referred to as showing this question is not so obvious as to have attracted the attention of counsel arguing those eases. Although the rule of strict construction obtains in this class of eases, it must not be so strict as to defeat the intention of the legislature. This is forbidden by the first section of the chapter entitled “Statutes.” It provides that “all general provisions, terms, phrases and expressions shall be liberally construed, in order that the true intent and meaning of the legislature may be fully carried into effect. ” This rule of construction is, in express terms, made applicable to all laws then or since in force. This provision requires a liberal construction to effectuate the purpose of the legislature, but it does not require' the court to bring cases of a like nature, not named in terms or by clear implication, into the statute, nor to give a narrow and restricted meaning to the language employed, but to fairly and reasonably cany out the intention of the legislature, as gathered from the entire provision or enactment.

We are, then, required to determine, from the language of the section, whether it was the purpose of the legislature to limit the fine for a first offence to no more than $100. As a general rule, the exclusion of one subject or thing is the inclusion of all other things. When the legislature, in this ease, excluded the power of the court to impose a fine of less than $100, it, by implication, authorized the exercise of power to impose a fine for more than that sum. It fixed the minimum, but fixed no maximum. Had there been an intention to fix that sum as the limit, both as a minimum and maximum, it appears almost incredible that no language was employed to manifest the intention, especially so, when, in the same section, in fixing the penalty for a repetition of the same offence by confinement in the penitentiary, a minimum and a maximum were prescribed. It therefore appears that the fixing of a penalty for the first offence, in omitting to limit it to not more than $100, was not from inadvertence or mistake, but was, intentional, and if so, it must have been designed to authorize a fine of more than $100 for the first offence. It would, however, not be strained construction to say that for the first offence there is a limit. The legislature evidently regarded a second offence as graver than the first, because the minimum fine for it is fixed at $500, and imprisonment for not less than six months in the county jail. It is, then, reasonable to infer that it was not intended the fine for a first offence should be more than that of the second and greater offence. It would be unreasonable to suppose the legislature designed to confer power on the court to punish more severely for the lesser than it might for a greater offence.

On this question of construction of the section under consideration we receive but little aid from adjudged eases. In the ease of Drake v. The State, 5 Texas App. 649, a defendant was indicted and tried for murder, and the jury found him guilty of murder in the second degree, and fixed i his term of service in the penitentiary for life. The statute provided that in such cases the person so convicted should be confined in the penitentiary not less than five years, without fixing a maximum limit. In the opinion of the court affirming the judgment it is said, it was urged that the punishment was too severe, but the court did not allow the objection. In the case of Childs v. The State, 2 Texas App. 36, a woman was convicted for murder in the second degree, and sentenced, on the verdict of the jury, to confinement in the penitentiary» for the period of sixty years, and the judgment was affirmed. Thus it seems that the power to extend punishment beyond and greatly above the minimum term fixed by the statute seemed so obvious to both counsel and court that no question was raised or discussed.

The ease of Stinson v. Pond, 2 Curtis’ C. C. 502, is referred to as supporting the rule of construction contended for by plaintiff in error. That was an action of debt, to recover a penalty under an act of Congress, given for marking the word “patented” on unpatented manufactured articles. The statute prohibited such marking, under a penalty of not less than $100. Thus, it is seen, in that respect that statute was similar to the Texas and our statute. Judge Crams, in construing the statute, held that the penalty was limited to $100, and a recovery could not exceed that sum. We are unable to concur with-his conclusion, because it seems to us that under our act such was not the intention of the legislature. When, under our act, the fine is fixed above the minimum, it is subject to be reviewed.

It is also urged, the power to define crime, and to prescribe the penalty for its punishment, is a legal and not a judicial function, and the court, therefore, has no power to impose a fine for a larger sum than that specified as the lowest amount by the statute. It is, no doubt, a legislative function to define crimes and misdemeanors, and prescribe the penalties, and it is equally true that courts can impose no punishment unless authorized in terms or by clear implication; but it does not follow that the legislature is powerless to authorize the court or the jury to exercise discretion, between prescribed limits. Such power has been conferred on all courts in administering the criminal law wherever the common law has obtained, and doubtless under all other systems, both ancient and modern. If such a discretion were not allowed, it would be impossible to even approximate justice. It would be to punish all offences falling under the same definition wfith precisely the same penaltjq regardless of the aggravating or extenuating circumstances of the case. It would defeat the constitutional provision that penalties shall be proportioned to the offence. Here the penalty was fixed by the General Assembly, between limits. In punishment short of the death penalty there is given a wide range between limits. Here is an offence against the public of most ruinous consequences; but it admits of degrees, and offenders should be punished according to the degree of the offence. In one case, a man, we will suppose, keeps a small gaming house, where occasionally a few persons meet and bet small sums. On the other hand, another person keeps a palatial concern, with all the allurements to attract persons to resort to it for the purpose of' gaming, and to which large numbers resort, and daily and nightly bet and lose their thousands, and its victims of ruin are hundreds for the one at the smaller concern. Shall both be punished by precisely the same penalty ? Justice forbids it; and it is too incredible for belief that the legislature ever so intended, and we would defeat the purposes of the formation of government if- we should so hold. The legislature may, constitutionally, confer the power on the courts or juries to proportion the punishment according to the circumstances in each ease, within limits that may be imposed by statute.

It is likewise insisted that the court erred in sustaining the demurrer to the plea of autrefois convict. Although that plea and autrefois acquit have been used in our practice, they are useless under the provisions of our statute, and .the question has never been presented whether these defences may be made under the general -issue. The 432d section of the Criminal Code provides, that, “upon the arraignment of a prisoner, it shall be sufficient, without complying with any other form, to declare oralty, by himself or his counsel, that he is not guilty. ” This provision in terms dispenses with all other pleas and forms, and clearly permits all meritorious defences to be made under the plea of not guilty. The statute has dispensed with all others than that plea, unless it be pleas in abatement, etc. It renders unnecessary the plea of former conviction, and allows that defence to be made under the plea of not guilty, and being unnecessary it is not error to sustain a demurrer to such a plea or strike it from the files. "Without the plea the same evidence in defence may be given that could be if it was pleaded. By sustaining a demurrer to such a plea the accused can sustain no wrong, as he may still introduce any evidence he might under the plea. Curtiss v. Martin, 20 Ill. 557, City of Quincy v. Warfield, 25 id. 317, Manny v. Rixford, 44 id. 129, Wiggins Ferry Co. v. Blakeman, 54 id. 201, and McCord v. Mechanics’ National Bank, 84 id. 49, sustain this doctrine. Defendant, had he chosen to do so, could have introduced evidence of a former conviction of the same offence then being tried, if he had such evidence, and could have been acquitted. Had he offered such evidence, and it had been rejected, then there would have been error.

It is urged that the circuit court did not have jurisdiction, because the section under which plaintiff in error was tried is repugnant to section 381 of the Criminal Code. It is this: “Original jurisdiction in all cases of misdemeanors, where the punishment is by fine only, and the fine does hot exceed $200, is conferred upon justices of the peace. ” There are at least two conclusive answers to this objection. First, there is no language employed to indicate that exclusive jurisdiction was intended to be conferred. But had there been such an intention, it 'would have been violative of section 12, of article 6, of the constitution. It has vested the circuit courts of the State with original jurisdiction of all causes in law and equity, and we find no other provision authorizing them to be divested of such jurisdiction. Other tribunals may be vested with concurrent, but not exclusive, jurisdiction, unless authorized by that instrument. (Myers v. The People, 67 Ill. 503.) This was a cause at law, and the legislature had no power, if it had so desired, to deprive the circuit court of original jurisdiction in this class of cases. Again, we have seen the penalty under this section is not limited to $200.

It is next urged, that the legislature having conferred power on the city of Chicago to suppress gaming houses, and it having assumed the power, and passed ordinances for the purpose, the court had no jurisdiction to try the case; that when a proceeding was had under the city ordinance, the judgment for the breach of the ordinance was an end of the case, and there was no power to prosecute under the general law for this offence. That the legislature may rightfulty declare the same act to be two offences, and to be punished as such, has long been the settled law of this State. In the case of Freeland v. The People, 16 Ill. 380, it was held that where one was tried and convicted for an assault and battery, when indicted with others for a riot, in committing the act for which he had been convicted, that conviction was no bar to the prosecution for the riot, as the act committed included two offences. In Severin v. The People, 37 Ill. 414, it was held that for an assault with a deadly weapon the offender might be convicted of an assault and battery, and when indicted for an assault with a deadly weapon he could not plead the conviction for the assault and battery in bar of the indictment, because the same act contained both offences. In Skidmore v. Bricker, 77 Ill. 164, it was held that the prosecution and fining a part of the persons indicted for an assault and battery, is no bar to a prosecution for riot, growing out of the same transaction. In Wragg v. Penn Township, 94 Ill. 12, this court held that the legislature had power to give two actions for the same act in obstructing a road,—one for a penalty to the township, to be expended on the roads, and the other by indictment,—that the act was thus made two offences, one against the township, and the other against the people, and that both could recover by different proceedings. Thus it is seen the doctrine is established in this jurisdiction. These are subsequent cases, and overrule the doctrine of Berry v. The People, 36 Ill. 223. The delegation of power to the city to suppress gaming houses, and its exercise, is, at most, concurrent, to a limited extent. No one will contend that the legislature intended to, or did, confer the power on the city to punish the third offence with imprisonment in the penitentiary. The limit of the fine a city or village can impose under the general act of Incorporation is $200, and the imprisonment not m¿re than six months, hence it can not be inferred, under any circumstances, the city has jurisdiction to impose the penalty for the second and third offences prescribed by this section. When jurisdiction was conferred on the city, it was to enable it to define and punish the keeping a gaming house as an offence against the city and its inhabitants, and not to yield the power of the State to the municipality.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

Separate opinion by Mr. Justice Scholfield :

I concur in affirming this judgment, but I do not concur in what is said in the opinion of Mr. Justice Walker on behalf of a majority of the court, in regard to the plea of autrefois convict. At common law there were four kinds of special pleas in bar which go to the merits of the indictment, and give a reason why the prisoner ought noi io answer it at all, nor put himself upon b trial for the crime alleged. They were, a former acquittal, a former conviction, a former attainder, and a pardon. (4 Blaekstone’s Com, (Sharswood’s ed.) 334, *335.) And in cases of felony the rule was, that he who pleaded these pleas should also plead over not guilty to the felony, for if the pleas were adjudged against him, he should then be tried upon the issue of not guilty. (2 Hale’s Pleas of the Crown, 354, *255; 4 Blackstone’s Com. (Sharswood’s ed.) 337,'*388.) And former acquittal or conviction must be pleaded, and evidence of either was not admissible under the gener-,1 issue. Archbold’s Criminal Pleading, (13th ed.) 117, seq.; State v. Barnes, 32 Maine, 534; Commonwealth v. Merrill, 8 Allen, 545.

The question has not heretofore been directly passed upon by this coui t vhether evidence of former acquittal or former conviction , <y be given in evidence under the general issue, but there is reason why it should not be. As has been seen, these jjíprecede, in point of time, the plea of not guilty, and s/e-ii to avoid answering the indictment at all, and, if mahijtti.iited, dispense with any answer to it. Not guilty puts in iis'nii. simply the allegations in the indictment, and under it tbi.- question is whether the defendant is guilty as charged. It be, therefore, held, both issues can not rightly be submitted to the jury at the same time; but on this point there is not entire uniformity in the practice in the different States. In all cases, however, the issue on autrefois convict or autrefois acquit must be first disposed of, for until it is disposed of it can not be known whether the defendant is required to make answer to the indictment. Wharton says (1 Grim, paw, 7th ed. sec. 530 a): “And ip this country; .in cases where not guilty has been pleaded simultaneously with autrefois acquit, the same course, ” alluding to the English practice, “has been followed, and the plea of not guilty stricken off until the special plea is disposed of. In such case, after determining the special plea "against the defendant, the present practice in the United States is to enter simply a judgment of respondeat ouster in all cases in which the special plea is not equivalent to the general issue. This, which is technically the correct practice, is not, however, always pursued. A short cut is often taken to the same result by directing, when special pleas and the general issue are filed simultaneously, or are found together on the record before trial, that the special jileas should be tried first, and if they are fopnd against the defendant, then the general issue. But‘under any circumstances it is error to try the special plead and the general issue simultaneously. The special jilea must always be disposed of before the general issue is tried.” See, also, 1 Bishop’s Grim. Procedure, secs. 435-338; Commonwealth v. Merrill, supra.

With all due respect for my brethren, I can not think the section of the statute referred to in the opinion o'f the majority of the court (Const, sec. 4, div. 2, Rev. Sta% 1874, p. 410,) has the slightest reference to special pleas i» bar, which go, not to the question of the guilt or innocence o'f the defendant under the indictment, but simply to whether he is bound to make answer to the indictment. This sectiori is but a substantial reenactment of the common law rule. T\he plea of not guilty there was interposed ore temas, and take\n down by the clerk, and this constituted the issue between the Crown and the prisoner, and. under it the prosecution were not only required to prove every fact essential to establish the guilt of the prisoner, but the jury were required to take notice of any defensive matter, and give their verdict accordingly. (4 Blackstone’s Com. (Sharswood’s ed.) 337, *338; 1 Archbold’s Grim." Practice and Pleading, (6th ed.) 109, *110; 1 Wharton’s Grim. Law, (7th ed.) sec. 530; 1 Bishop’s Grim. Procedure, sec. 466.) By section 8 of the same division of the Criminal Code, it is expressly provided that “all trials for criminal offences shall he conducted according to the course of the common law, except when this act points out a different mode. ” And so, it would follow, the act not pointing out that special pleas in bar are unnecessary, or that the defences ■which were thereby interposed at common law are now to be interposed in a different way, autrefois acquit and autrefois convict must still be specially pleaded.

But, again, the phraseology of the section quoted in the opinion of the majority of the court is a literal transcript of section 171 of the Criminal Code of 1833. (See Bev. Stat. 1833, p. 212.) And the decisions of this court, therefore, made since 1833, were all made under, and, we must assume, with knowledge of and with reference to, the law as laid down in that section.

In Gerard v. The People, 3 Scam. 362, (decided in 1842,) there was a plea of autrefois acquit. It was demurred to, and the demurrer was sustained by the circuit court. The only question discussed or passed upon in this court was, whether the demurrer was properly sustained to the plea. This court affirmed the judgment of the circuit court, upon the ground that the record pleaded showed that the judgment had been arrested.

In Durham v. The People, 4 Scam. 172, demurrer was sustained by the circuit court to a plea of autrefois acquit. The only question there discussed or passed upon in this court was, whether the demurrer to the plea was properly sustained. This court reversed the judgment of the circuit court, upon the ground that the plea presented a good defence, and that the circuit court therefore erred in sustaining a demurrer to it.

In McQuoid v. The People, 3 Gilm. 76, the sole question for this court was, whether the circuit court erred in sustaining a demurrer to a plea of autrefois acquit, and the judgment was here affirmed, upon the ground that the plea was insufficient, in not showing that the offences in the two indictments constituted one and the same identical offence.

In Freeland v. The People, 16 Ill. 380, the sole question was, whether the circuit court erred in sustaining a demurrer to a plea of autrefois convict. In that case the court entered into an elaborate examination of common law decisions, English and American, and, resting its decision purely on the common law doctrine applicable to special pleas in bar in criminal cases, affirmed the judgment of the circuit court, on the ground that the allegations were not sufficient to make a good plea of autrefois convict.

In Phillips v. The People, 55 Ill. 430, it was held within the discretion of the trial court to allow or refuse the plea of not guilty to be withdrawn, and a special plea, setting up a former conviction in a foreign State, to be filed.

In Bedee v. The People, 73 Ill. 320, there was a plea of autrefois convict, to which it was replied the former judgment was arrested. A demurrer to that replication was overruled, and that ruling we affirmed.

In none of these cases was it intimated the matter of the special plea could be given in evidence under the general issue. In all of them the practice pursued, and the reasonings in the opinions of the court, are inconsistent with that idea. And in Durham v. The People, the ruling seems to me expressly and diametrically in opposition to what it is here. Even if it be conceded that this defence may be given in evidence under the general issue, this unbroken current of decisions, covering a period of near forty years, certainly firmly establishes the practice that the defence may be presented, and its sufficiency tested, by special plea. Parties indicted could not anticipate a change in "this practice, and could not, therefore, be expected to conform to such change by offering evidence to prove a defence held inadmissible on a demurrer to a special plea. They are justified in assuming, when the circuit court has sustained a demurrer to their pleas, that this court will, on error, reexamine the questions raised by such demurrers. In the present case, however, I am of opinion the plea was defective, and the demurrer was properly sustained to it by the circuit court. I do not think that it is sufficiently shown by the record recited, and by averments in the plea, that both indictments are for one and the same identical offence, which is indispensable in such a plea. (McQuoid v. The People, supra.) All the authorities are to the effect that in such a plea the record of acquittal or conviction must be recited. (2 Hale’s Pleas of the Crown, 254, 255; 1 Bishop’s Grim. Procedure, sec. 580.) And the first or former acquittal or conviction must have been regular. (Commonwealth v. Peters, 12 Metc. 387; State v. Odell, 4 Blackf. 156; State v. Payne, 4 Mo. 376; Dunn v. State, 2 Pike, 229; Rector v. State, 1 English, 187; Rex v. Bowman, 6 Carr. & Payne, 337.) It must show a conviction by verdict. 2 Hale’s Pleas of the Crown, 246.

In McKinney v. The People, 2 Gilm. 540, this court said: “In a criminal case, after the caption stating the time and place of holding the court, the record should consist of the indictment, properly indorsed, as found by the grand jury ; the arraignment of the accused, his plea, the impanelling of the traverse jury, their verdict, and the judgment of the court. ” It is the verdict of acquittal or conviction that forms a bar to a subsequent prosecution for the same offence, although no judgment may have been entered upon it. (Bren nan et al. v. The People, 15 Ill. 517.) The record of conviction here set out shows no impanelling of a jury, and no verdict by a jury. There can be no inference that there is any other record, because it was the duty of the pleader to set out the record, and this he assumes to do. The constitution and the statute require that the guilt or the innocence of the accused must be determined by the verdict of a jury, ^,nd a court assuming, against the will of the prisoner, to convict, without the intervention of a traverse jury, would be acting without jurisdiction, and its acts would he void. Work v. The State, 1 Ohio St. 296; Cancemi v. The People, 18 N. Y. 128.

The defendant may undoubtedly waive the right to a trial by jury. He may plead guilty, or he may, at least in misdemeanors, waive a jury, and let the issues be tried by the court. But this is exceptional, and the record should show the waiver. The record here shows no such waiver, and there can be no presumption of the existence of that which should, but does not, appear of record. The plea fails, therefore, to show a valid conviction.

Mr. Justice Mulkey : I concur with my brother Scholeield.

Mr. Justice Dickey,

dissenting:

I thinlr the plea of former conviction was good, and it was error to adjudge it bad on demurrer, and that, for that error, this conviction ought to be reversed. The plea shows the presenting by the grand jury of the former indictment as a true bill, in open court, but fails to show that it was so indorsed by the foreman. The plea shows, in the former proceeding, that defendant pleaded not guilty to the indictment, and was -tried, found guilty, and sentenced by the court, but fails to show the trial was by jury. There were defects and irregularities in the former proceeding which might be sufficient to arrest the judgment, on motion, or to reverse the same on error, but do not render the judgment of conviction void. The plea shows a conviction by a court having jurisdiction, and shows the identity of that charge with that for which he was here charged. This was a complete bar until reversed for error,—and, in my opinion, was a bar.

I am not prepared to concur in the position that a former conviction may lawfully be given in evidence under the plea of not guilty. Our statute says, an oral plea of not guilty shall be sufficient. This was sufficient at common law, but under such plea former conviction could not be proven. However this may be, the court having adjudged, on demurrer to the special plea, that the former conviction was not a bar to another prosecution for the same offence, we have no warrant for saying, in this ease, the facts alleged might have been proven under the plea of not guilty. This certainly could not have been done unless the trial court changed its views as to the law. The court having once decided that the facts alleged in the plea did not make a good defence, there was no need that defendant should, on the trial, demand of the court to decide that question again, in order to avail himself here of the error in pronouncing the plea bad. The contrary doctrine has never been applied in a criminal case, and I think it unsound in any case. Had proof of the former conviction been offered and admitted upon the trial, we might say the former error did the accused no harm. That would have shown the -court had changed its views, and had given the accused the same benefit he could have had by a trial of the truth of the special plea. But the record in this case affirmatively shows that no such proof was offered or given, and the truth of the allegation of the former conviction for the very same offence has, in fact, never been tried, and its truth stands confessed upon the record.


source: Caselaw Access Project

author: Mr. Justice Craig

license: Public Domain

text:
    John P. Fyffe v. Mary Fyffe.

      Filed at Mt. Vernon June 16, 1883.

    1. Evidence—declarations of vendor to impeach vendee's title. The rule is well settled that the declarations of a vendor after sale of land, are not admissible to impeach the title of his vendee, of either real or personal property.
    2. Same—declarations of person in possession as to ownership. Where a person is in the possession of land, claiming to own the same, the manner in which he used and treated the property, and his declarations in connection with acts, may be regarded as part of his acts in relation to the property, and these may be shown by one claiming title under him after his death.
    3. Where a deed is made to J. P. F., which was the name of a father as well as that of his minor son, and the father paid for the land, received and recorded the deed, took and kept possession until his death, and the son brought ejectment for the land against the father’s widow, it was held competent for the defendant to prove that the father, while in possession, offered to sell the same as his own property, as indicating ownership by the father.
    4. Deed —presumption as to grantee, when there are two of the same name. Where a deed is delivered to a father of the same name as his minor son, without any statement of the grantor that it was delivered to him for his son, the presumption will be that it was.delivered to the father for his own benefit, as the grantee.
    5. Where a deed is made and delivered to a father, without any statement at the time it was for his son having the same name, the title will pass to the father regardless of any secret unexpressed intention that the grantor may have entertained.
    Writ of Error to the Circuit Court of Lawrence county; the Hon. Thomas S. Casey, Judge, presiding.
    Messrs. Green & Pritchett, and Messrs. Bell & Green, for the plaintiff in error.
    Mr. E. Callahan, and Mr. Wm. Robinson, for the defendant in error.
   Mr. Justice Craig

delivered the opinion of the Court:

This was an action of ejectment, brought by John P. Fyffe, against Mary Fyffe, to recover eighty acres of land, in Lawrence county. A trial was had before a jury, which resulted in a verdict and judgment in favor of the defendant, and the plaintiff appealed.

Both parties claim title under one and the same deed. The deed was executed oncthe 8th day of October, 1870, by William J. Mayo, and Bosaline Mayo, his wife, and conveys the premises to John P. Fyffe. It is claimed by the plaintiff that he is the John P. Fyffe named as grantee in the deed. On the other hand, defendant claims that her husband, John P. Fyffe, who was the father of the plaintiff, was the person to whom the land was conveyed. There was evidence introduced on the trial tending to show that the plaintiff was the grantee in the deed. On the other hand, there was evidence tending to prove that John P, Fyffe, the father of plaintiff, was the person to whom the premises were conveyed, and, upon a consideration of all the evidence, we think it preponderates in favor of the verdict of the jury. At the time the deed was executed by Mayo and his wife, plaintiff was a minor, eight or nine years old. He had no property, and had nothing to do, so far as the evidence shows, with procuring the deed. The land was bought and paid for by plaintiff’s father. He owned a farm on the “State road,” which he conveyed to Mayo in exchange for the premises in controversy. After the purchase he moved on the property, and resided there with his family until his death. He, from the time of the purchase, claimed the land, and treated it in all respects as his own property. It is true that Mayo testified that he deeded the land to the plaintiff, but his cross-examination seems to show that he was mistaken. In his cross-examination he, in substance, said, on the night before the deed was executed a dispute arose between Fyffe and his wife in regard to the person to whom the land should he conveyed. He suggested the name of his son Perry, and she in turn suggested the name of her daughter by a former marriage, May. They quarrelled about it for some time, and finally the old man said, “Deed it to John Perry Fyffe, and let it go at that.” This seems to have settled the matter that the land was to be conveyed to the old man. This view is corroborated by the testimony of Hill, who wrote the deed and took the acknowledgment on the day following. In his evidence he said: “Mayo- came to me and got me to make the deed, and told me to make it to John Perry Fyffe, and I did so. There was nothing said about junior, in the deed. * * * Old man Fyffe was. the only John Perry Fyffe there. He and Mayo came together. I did not know the boy, or hear anything said about him. ” Other testimony was introduced on the question, but it will not be necessary to refer to it here. Enough has been alluded to to show that the evidence in the record preponderates in favor of the verdict. It only remains to be seen whether the court erred in the admission or exclusion of evidence, or in the instructions to the jury.

On the trial the defendant introduced in evidence the declarations of Fyffe while he was in the possession of the land, and the admission, of this evidence is relied upon as error. The court, on motion of the plaintiff, excluded the declarations of Fyffe, except such declarations as were accompanied with acts, and allowed the acts of Fyffe while in possession of the land, and such declarations as accompanied those acts, to go to the jury. It is contended by appellant that Fyffe was the vendor of the premises, and plaintiff the vendee, and his declarations were not admissible under the well recognized rule that “the statements of a vendor of land, made after the sale, are not admissible to prove any fact affecting the title of the vendee. ” The rule is well settled that the declarations of a vendor are not admissible to impeach the title of a vendee, of real or personal property. (Gridley v. Bingham, 51 Ill. 153.) But that rule has no application to the question involved here. Fyffe was in no sense a vendor of the premises. ' He never conveyed to the plaintiff, or to any other person. He claimed to he a vendee of the premises, and the plaintiff also claimed that he was a vendee, and the sole question at issue was, whether he was the vendee or whether the plaintiff was the vendee. In no event could he be regarded as the vendor. The rule, therefore, which prevents a vendor, after sale, from impeaching the title of his vendee by declarations, can have no application whatever to the facts of this case. As before observed, Fyffe bought this land himself,—he paid the purchase money from his own property, and after he received a deed he moved on the land and occupied it until his death. We think it was competent for the defendant to prove that the deed was delivered to Fyffe, what he did with the deed, and the manner in which he used and treated the property, and his declarations in connection with such acts may be regarded as part of his acts in relation to the property, and thus admissible evidence.

It is also contended that the court erred in giving defendant’s fourth, fifth and eighth instructions. The fourth, in substance, directed the jury that if they found from the evidence that John P. Fyffe, the father, was in possession of the land, and offered to sell the same as his own, this is a circumstance to be considered as indicating the ownership of the land by the father. We perceive no error in the instruction. Where a man is in possession of a tract of land, claiming to own it, and offering to sell, may always be regarded as evidence tending to show title in the occupant. The fifth instruction, in substance, declared, that if the evidence shows that when the deed was executed it was delivered to John P. Fyffe, the father, without any statement of the grantors that it was delivered to him for his son, the presumption would be that it was delivered to him for himself, and for his own benefit, as grantee. A deed is ordinarily delivered to the person to whom the property is conveyed, or to some one for the grantee. Here the deed was made to John P. Fyffe, and after it was acknowledged it was delivered to him. Under such circumstances the presumption, of course, would he, in the absence of any statement to the contrary, that the deed was delivered for the benefit of the father. The eighth instruction, in substance, directed the jury that they were to determine whether Mayo conveyed the land to the father or the son, from what was said and done, and not from the unexpressed intention of Mayo. What secret intention Mayo may have had was a matter of no consequence. If the land was bought by the father for himself, and the deed made and delivered to him, of course the title to the premises would pass to him, regardless of any secret or unexpressed intention that the grantor may have entertained.

We do not think the instructions were calculated to mislead the jury, nor do we perceive any ground to disturb the judgment.

Judgment affirmed.


author: Mr. Justice Scholfield

text:
    The Illinois Furnace Company et al. v. Vinnedge, Jones & Co.

      Filed at Mt. Vernon June 16, 1883.

      Appeal—on creditor's bill. On a decree upon a creditor’s bill setting aside a certain sale as fraudulent against creditors, and subjecting the land to the lien of the judgment, no appeal lies directly to this court, as no freehold is involved.
    Appeal from the Circuit Court of Hardin county; the Hon. Daniel M. Browning, Judge, presiding.
    Mr. L. F. Plater, and Mr. W. G. Bowman, for the appellants.
   Mr. Justice Scholfield

delivered the opinion of the Court:

This was a creditor’s bill, by Joseph Yinnedge, Aquilla Jones, and William L. Armstrong, partners, under the firm name of “Yinnedge, Jones & Co., ” judgment creditors of the Illinois Furnace Company, against Delos Boot and Jerome B. Boot, partners, under the firm name of “D. Boot & Co.,” the Illinois Furnace Company, James H. McKernan, and William B. Nofsinger, to set aside a certain decree on petition for mechanic’s lien in favor of said D. Boot & Co., and against the said Illinois Furnace Company, and a sale thereunder of certain lands, and of a blast furnace and fixtures, for smelting iron, on said lands, to said Delos Boot. It is charged the decree and sale are colorable, covinous and fraudulent, and for the sole purpose of hindering and delaying creditors of said Illinois Furnace Company in the collection of their debts, and the prayer and decree are, that said decree and sale as to complainants’ judgment be set aside, and that said property be subject to be sold for the satisfaction of the same. The case comes directly here by appeal from the circuit court.

The effect of the decree is to invest no title in complainants, but merely to declare certain property the subject of a lien in favor of their judgment. The case is, in principle, precisely the same as Sawyer et al. v. Moyer et al. 105 Ill. 192, Chicago, Burlington and Quincy R. R. Co. v. Watson et al. id. 217, and Conkey et al. v. Knight et al. 104 id. 337, in which we have held we have no jurisdiction in such eases by direct appeal from the circuit court, because no freehold is involved. For the reasons expressed in those cases this appeal must be dismissed, but appellants will be allowed, if they shall be so advised, to withdraw their record, abstracts and briefs, for the purpose of suing out a writ of error from the Appellate Court.

Appeal dismissed.


author: Per Curiam :

text:
    The Wabash, St. Louis and Pacific Railway Company v. The People of the State of Illinois.

      Filed at Springfield January 23, 1883.

    1. Bill of exceptions—when necessary—as to rulings upon motions. A motion to remove a cause from the State court to the Federal court, and the decision of the State court thereon, do not become a part of the record, unless made so by a bill of exceptions.
    2. Same—within what time to he signed. A bill of exceptions should be reduced to writing, and signed during the term at which the decision in respect to which the exception was taken, was rendered, except in cases where the counsel consent, or the judge, by an entry on the record, directs, that it may be prepared in vacation, and-signed nunc pro tunc; and in all cases it should appear on its face to have been taken and signed at the trial.
    3. So where a motion was made to transfer a suit to the United States Circuit Court, and the same was overruled, it was held, that a bill of exceptions in respect to the ruling of the court on such motion, presented and signed at a subsequent term, came too late, and the same was stricken out of the record.
    This was a motion to strike from the record a second bill of exceptions filed in the cause.
    Mr. James McCartney, Attorney General, and Mr. A. Sample, for the motion.
    Mr. H. S. Greene, and Mr. F. T. Hughes, contra.

   Per Curiam :

Motion is made by the Attorney General that the second bill of exceptions filed in this case be stricken from the record.

On the 17th of April, 1882,—being one of the days of the April term, 1882, of the Ford county circuit court,—appellant presented its petition to that court praying that the cause be transferred to the Circuit Court of the United States for the Southern District of Illinois. The prayer of the petition was denied, and no bill of exceptions was then presented to the court preserving this ruling and exception thereto, nor was leave given or asked, at that term, to prepare and present to the court such a bill of exceptions at any future day. Subsequent to that ruling, and during the same term, appellant demurred to the declaration. The court sustained the demurrer, and gave judgment for costs against appellee. From that judgment an appeal was prosecuted to this court, and at our June term, 1882, we rendered judgment reversing the judgment of the circuit court, and remanding the cause to that court for further proceedings. On the 12th of December, 1882,—being one of the days of the December term of that year,—appellant presented to the court its bill of exceptions, in which the ruling on the motion to transfer the cause to the Circuit Court of the United States for the Southern District of Illinois, and exception thereto, are recited, and asked to have the same signed and made part of the record. It is therein shown that the counsel for appellee objected to the signing of such bill of exceptions and making the same a part of the record, and that thereupon “the court, being in doubt whether or no he should sign the same against the objection of the plaintiff, (appellee,) signs the same and refers the question whether the defendant (appellant) is entitled to have said bill of exceptions signed at said December term, 1882, of said court, to the Supreme Court,” etc.

It has long been the settled practice of this court that a bill of exceptions should be reduced to writing, and signed during the term at which the motion excepted to is made and decided, except in cases where the counsel consent, or the judge, by an entry on the record, directs, that it may be prepared in vacation, and signed nunc pro tunc; and that in all cases it should appear on its face to have been taken and signed at the trial. (Evans v. Fisher, 5 Gilm. 456; Burst v. Wayne, 13 Ill. 664.) It was clearly too late, therefore, to present for the first time the bill of exceptions in relation to the ruling on the motion at the April term, at the subsequent December term.

But it is insisted this ruling is properly a part of the record, without a bill of exceptions. We can not concur in this view. Motions, and decisions of the court thereon, in applications of this kind, are no part of the record, unless made so by bill of exceptions. Cromie v. Van Nortick, 56 Ill. 353.

The motion is sustained.

Motion sustained.


author: Mr. Justice Mulkey

text:
    Asenath M. Bond v. The Liverpool and London and Globe Insurance Company.

      Filed at Ottawa June 16, 1883.

      1. Payment—by giving new security—so as to discharge a prior mortgage-. Where it clearly appears that the giving of new security is intended as an absolute payment of a mortgage indebtedness, it will have that effect, but not otherwise. The presumption is always the other way. The general rule is, that no change of the evidence of the mortgage indebtedness will operate as a discharge of the mortgage.
    2. In this case a wife purchased premises, subject to a mortgage thereon, to secure an indebtedness bearing nine per cent interest, which she assumed to pay. On the maturity of the debt her husband applied for and obtained an extension of the time of payment by giving his own note for the sum due, bearing ten per cent interest. The wife then filed a bill to remove the mortgage as a cloud on her title, which was dismissed: Held, that there was no error in the order dismissing the bill, as the giving and acceptance of the new note did not operate as a payment and discharge of the mortgage indebtedness.
    Appeal from the Appellate Court for the ■ First District;— heard in that court on appeal from the Circuit Court of Cook county; the Hon. William H. Barnum, Judge, presiding.

      Mr. John P. Altgeld, for the appellant,
    contended that the giving up the old mortgage note, and taking a new note from another person who was perfectly responsible, operated as a novation, substituting the maker of the new note as the debtor, and discharging all prior debtors, as well as the mortgage.
    Mr. Robert Hervey, for the appellee:
    It has been repeatedly held that the taking of the note, even of another person than the mortgagor, does not discharge the mortgage. The debt must be paid, in whatever form it may be. 1 Hilliard on Mortgages, 476-478; Pomeroy v. Rice, 16 Pick. 22; Baxter v. McIntyre, 13 Gray, 168.
    On assuming the payment of the mortgage debt Mrs. Bond became the principal debtor. Aldrich v. Cooper, 2 L. C. in Eq. part 1, pp. 283-285; Halsey v. Reeves, 9 Paige, 446.
   Mr. Justice Mulkey

delivered the opinion of the Court:

The present bill was filed by Asenath M. Bond, the appellant, in the circuit court of Cook county, against the Liverpool and London and Globe Insurance Company, the appellee, and others, to cancel a certain mortgage, and to have the same removed as a cloud upon the title to certain premises belonging to her, and which was an existing lien on the same at the time of her purchase, and which she then expressly agreed to pay as a part of the consideration of her purchase. The defendant company filed a cross-bill, praying a foreclosure of the same mortgage which she sought to have removed as a cloud upon the title. On the hearing, the circuit court decreed the relief sought by the cross-bill, and dismissed the original bill. This decree, on appeal, was affirmed by the Appellate Court for'the First District, and Mrs. Bond brings the case here for review.

The facts are these: On January 1, 1869, Charles A. Day and Sereno Gilman obtained a loan from the appellee for $4000, giving a note therefor, payable in five years, secured by a mortgage on a house and lot in Chicago, being the same mortgage now in controversy. The appellant subsequently bought the equity of redemption, and as a part of the consideration of her purchase expressly agreed to pay off this mortgage. When the mortgage matured, Marshall S. P. Bond, the husband of appellant, applied for an extension of the loan for another term of five years, which was granted, and he thereupon, as per agreement between him and the company, gave his own note for the amount of principal and interest then due on the mortgage, payable in five years, with interest at the rate of ten per cent per annum, the company at the same time surrendering to her the original note given by Day and Gilman, nothing at the time being said about cancelling the mortgage. The old note dréw but nine per cent interest, while the new one drew ten. When the latter note matured it was not paid, and appellant, claiming to be relieved from the payment of the original indebtedness, by reason of her husband taking up the old note and giving his own for the same debt, filed the present bill, as already stated, and the question presented for determination is, did the giving of the new note by the husband operate as a payment and dis- . charge of the mortgage indebtedness ?

Where it clearly appears that the giving of a new security, as was done in this case, is intended as an absolute payment and discharge of the mortgage indebtedness, it will have that effect, but not otherwise. The presumption is always the other way. The general rule unquestionably is, that no change of the evidence of the mortgage" indebtedness,—and a note is nothing more,—will operate as a discharge of the mortgage, and we see nothing in the circumstances of this case to take it out of the general rule. Jones on Mortgages, 924, et seq.

Perceiving no error in the judgment of the Appellate Court it is therefore affirmed.

Judgment affirmed.


author: Mr. Justice Scott

text:
    Samuel J. Baird et al. v. Trustees of Schools.

      Filed at Ottawa June 16, 1883.

    1. Appeal—reviewing controverted questions of fact. In an action on a note given by a defaulting school treasurer, and others, to secure the deficit in his accounts, it is purely a question of fact whether the others executed the note as sureties for its payment, or in discharge of their supposed liability as sureties on his official bond, and when the jury find such others liable as sureties on the note, and the judgment of the court on the verdict is affirmed by the Appellate Court, such finding of fact is conclusive on this court, and the evidence can only be looked into to see if the trial court erred in giving or refusing instructions.
    2. Surety—whether that relation exists. Where a late school treasurer was found to be in default, and the trustees of schools were willing to take notes, with security, for the sum due the school fund, and notes were accordingly drawn and executed by the treasurer, who took them to the sureties on his bond, and they signed the same, there being no fraud practiced on them to induce them to execute the notes, it was held, that their relation to the principal was that of sureties, and nothing else.
    3. Instructions—need not be repeated. There is no error in refusing instructions, every principle of law in which, applicable to the issues, are contained in others given for the same party. Nor will a judgment evidently just and proper be disturbed for slight errors in the instructions given.
    Appeal from the Appellate Court for the Second District;— heard in that court on appeal from the Circuit Court of White-side county; the Hon. Joseph M. Bailey, Judge, presiding.
    Mr. J. E. McPherran, and Messrs. Bennett & Green, for the appellants.
    Messrs. J. & J. Dinsmoor, for the appellees.
   Mr. Justice Scott

delivered the opinion of the Court:

This suit was brought on a promissory note, made by Daniel McIntyre, Samuel J. Baird and Benjamin Beed, to the trustees of schools, by their corporate name. To the declaration, which is in the usual form, pleas were filed, upon which issues were joined, in which it was alleged, first, a want of consideration for the making of the note on the part of defendants Baird and Beed; 'and, second, a part failure of the consideration. On the trial in the circuit court the jury found the issues for plaintiffs, and the court rendered judgment on the verdict. That judgment was affirmed in the Appellate Court, and defendants Baird and Reed bring the case to this court on their further appeal.

The defence insisted upon is, first, that defendants Baird and Beed were sureties on the official bond of their co-defendant McIntyre, as school treasurer of the township represented by plaintiffs; that the default made by the principal was made long before defendants became sureties on his official bond as such treasurer; that the notes were given under a misapprehension as to their legal liability on such bond, and hence there was no consideration for the notes made by them with their co-defendant; and, second, that the notes were given for a larger sum than was due from the principal in the bond to the township. On the other hand, it is insisted this note, with two others, which have since been paid, were given by McIntyre to settle the deficit in his accounts with the township, that the sums mentioned in the notes were actually due from him to the school fund of the township, and that defendants Baird and Beed were his sureties on the notes.

There is no controversy that McIntyre was a defaulter, and that when his successor was appointed he was unable to turn over to him the moneys the books showed were in his hands as treasurer of the township school fund. Whether defendants Baird and Beed were mere sureties for the defaulting treasurer on his notes given to secure the deficit in his accounts, was purely a question of fact, and as the jury found that question against defendants, and the Appellate Court affirmed the judgment of the trial court rendered on the verdiet, the finding of fact by the Appellate Court is, of course, conclusive on this court. It is not necessary, therefore, to look into the evidence further than to see whether the instructions given were applicable to the facts of the case, or whether the trial court erred in refusing instructions asked for by defendants. With that view the evidence has been carefully considered. It is quite apparent when it became known the school treasurer was in arrears, the trustees were anxious to have the matter closed up, and they were willing the delinquent officer might do so by giving his notes for the sum due the school fund, with sufficient security. Accordingly notes were prepared. They were signed by McIntyre, and he took them to his co-defendants, Baird and Beed, and they signed them, and they were then delivered to the trustees. No fraud was practiced upon them, or either of them, to induce defendants to sign the notes. Their relation to the principal was that of surety, and nothing else. The evidence tends to establish this theory of the case, and this court is warranted in believing the jury so found the fact to be.

It is not the duty of this court to comment on every one of the numerous instructions asked at the trial by the respective counsel. To do so in this case would extend this opinion to a most unreasonable length. The instructions asked by both parties were by far too numerous. Many of them had no sort of application to the real issues to be tried, and the court rightfully rejected them. It would have been highly proper for the court to have refused many more of those asked on behalf of plaintiffs, on the ground the nature of the case did not require them .to be given. Every principle of law that had any application to the defence sought to be made, was contained in the instructions given for defendants, and they were in nowise prejudiced by the refusal of the court to give other instructions. As respects the instructions given for plaintiffs, barring the fact they were by far too numerous, there was perhaps nothing in them seriously hurtful to the defence. It is quite plain the case has been decided correctly, and although some slight errors may have intervened in the giving or refusing of instructions, the jury arrived at a just and corrept conclusion, and their verdict should not be set aside on account of such slight errors as is readily seen did not affect the justness of the decision.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.


author: Mr. Justice Dickey Mr. Justice Scott,

text:
    Edgar Loomis v. William Cowen.

      Filed at Ottawa June 16, 1883.

    Former adjudication—what questions will Toe considered, on a second appeal. Where this court has decided, on appeal in an action of ejectment, that a mortgage under which title is attempted to be deduced, has been satisfied as to a part of the tract of land, and that a sale of such part under the mortgage passed no title, and the cause is remanded, and the trial court finds for the defendant in ejectment, in accordance with the decision of this court, and rhe plaintiff' brings the case here again, having shown below no other title than on the first trial, the decision of this court on the question so presented must be regarded as res judicata, and can not be again called in question.
    Appeal from the Superior Court of Cook county; the Hon. Sidney Smith, Judge, presiding.
    Messrs. Bisbee, Ahrens & Hawley, for the appellant.
    Mr. C. M. Harris, for the appellee.
   Mr. Justice Dickey

delivered the opinion of the Court:

Hall held the legal title to a tract of land, subject to a mortgage to Ayers and Hamilton for about $20,000. Hall, by a written contract, agreed to sell the west half of the whole tract to Smith for about- $18,000, of which $4000 was paid down, and the balance was to be paid in three annual installments. To induce Smith to buy, Ayers and Hamilton agreed, in writing, that the part purchased by Smith should be held for the payment of only one-half of the then unpaid part of the mortgage debt. Smith then agreed, in writing, with Cowen, to sell to him the land in controversy, being lot 17, and being a part of the land embraced in-Smith’s contract of purchase. The price Cowen was to pay for this lot to Smith was $625. He paid $181, and took possession, under the contract, in the spring of 1857, and has been in possession ever since. Smith, being unable to pay Hall for the land bought of Hall, for a nominal consideration reconveyed the west half of the whole tract to Hall, and Hall conveyed the whole tract to Bush. Afterwards, and in the year 1871, Cowen, claiming under his contract from Smith, paid to Bush an amount of money greater than the amount of principal and interest unpaid upon that contract, and Bush made a deed conveying to Cowen this lot 17.

Before this deed to Cowen, and in 1863, the mortgage debt not being fully paid, the owner of the debt, Sherman, (assignee .of Ayers and Hamilton) caused the whole tract to be sold, under the mortgage, for the unpaid part of the debt,—part to one Nichols, and part to one Colfax,—and in pursuance of these sales under the mortgage the whole tract was conveyed, —part to Nichols, and part to Colfax. All these contracts, sales and conveyances were recorded in apt time, except the contract of Smith with Cowen, and as to that, Cowen was in possession of the lot named in his contract. Nichols and Colfax conveyed to Cleaver. Through mesne conveyances, Loomis, the appellant, acquired the title to this lot 17, which passed under the said mortgage sale. After the purchase of Smith, and before the sale under the mortgage, Hall or Bush had made payments upon that unpaid part of the mortgage debt, one-half of which, only, was to be a charge upon the west half of the tract. These payments amounted to more than half .of that unpaid part of the mortgage debt, but no special application of such payments had been made to the relief of the west half of the whole tract. At the first trial of this action Loomis recovered judgment against Cowen. That judgment, on appeal to this court by Cowen, was reversed, (Cowen v. Loomis, 91 Ill. 132,) and the cause remanded for a second trial. On that trial the finding and judgment were for Cowen, and Loomis appealed from that judgment.

When the case was before this court on the appeal by Cowen, it was decided, upon the foregoing facts, that as against Cowen the payments made before the mortgage sale occurred had discharged from the lien of the mortgage all ■ that part of the tract which Hall had sold to Smith, and hence as against Cowen' no title passed by the sale under the mortgage, and this sale under the mortgage being the only source of Loomis’ title, he could not recover on these facts alone. The writer of this opinion did not then, and does not now, concur in the view then adopted by this court. But as between these parties that proposition became res judicata, and can not lawfully be called in question on this appeal. Unless, therefore, upon the second trial plaintiff showed title otherwise, the circuit court could not lawfully give judgment in his favor. The evidence on the second trial does not tend to vary the case in any respect save one. Proofs were offered tending to prove that when Loomis was about to buy the lot from one holding under the mortgage sale, he applied to Cowen to learn what claim, if any, he had to the property in question, and that Cowen orally disclaimed all legal right to the lot, and that on the faith of this disclaimer Loomis, with the knowledge and consent of Cowen, bought and paid for the lot. The evidence on this question was contradictory.

Waiving the question whether a plaintiff in ejectment can recover upon an estoppel of the kind claimed, we, upon ex-animation of the proofs, can not say that the alleged estoppel was so clearly proven that it was error to find otherwise. Ho instructions or propositions of law are preserved in the record showing distinctly upon what view of the law this finding did rest; but although the court at first refused to permit proof tending to establish the facts alluded to as the basis of estoppel, such proof was subsequently admitted and received by the court, and we must assume that the finding of fact was against appellant.

We find no sufficient ground upon which to reverse this judgment, and it is therefore affirmed.

Judgment affirmed.

Mr. Justice Scott,

dissenting:

Dissenting, as I do, from the decision of the majority of the court, I desire to express my views on the whole case.

It is a familiar rule, the legal title prevails in an action of ejectment. Such a title can not be called in question in a court of law. It must, if at all, be done in a court of equity. Both parties in this case claim the title to the property in controversy that was in Winchester Hall. The title to block ninety (90), which includes the lot involved in the present litigation, was in Enos Ayers and James G. Hamilton. Of this fact neither party make any controversy. On the 23d day of May, 1856, Ayers and Hamilton, their wives joining with them in the execution of the' deeds, conveyed the whole block numbered ninety (90) to Winchester Hall. That is the admitted source of Hall’s title, and of all the title he ever had to the property. ' The deed from Ayers and Hamilton was not recorded until the 18th day of October, 1856, but whether it was delivered before that date or not does not appear. On the last named day Hall executed and delivered to Ayers and Hamilton a mortgage on the entire block, to secure the purchase money agreed to be paid to them, which mortgage was recorded the same day, and it may reasonably be presumed the filing of the deed and mortgage for record were simultaneous acts. The mortgage contained the usual power of sale. In this action plaintiff, Edgar Loomis, claims the legal title to the property, which is a part of the west half of block ninety (90), under the mortgage made by Hall to Ayers and Hamilton, which was afterwards, as will appear as the discussion goes on, foreclosed by a sale under the power contained in the mortgage, by the legal holder of the indebtedness secured. The defendant, William Cowen, deraigns his title to the same property, whatever that title maybe, by mesne conveyances from Hall, the first of which was made after the execution and recording of his mortgage to Ayers and Hamilton, to secure the purchase money of the property. It is plain, if the mortgage was in fact foreclosed in a manner to cut off the equity of redemption that was in Hall and those claiming under him, that then plaintiff in this suit has the legal title to the property, and in this form of action it will prevail, no matter whether defendant has equitable rights in the property or not. Under the rulings of this court the mortgagee of lands is held, in law, the owner of the fee, having the jus in re as well as ad rem, and entitled to all the rights and remedies which the law gives such owner, and may, after condition broken, maintain ejectment against the mortgagor. (Oldham v. Pfleger, 84 Ill. 102; Johnson v. Watson, 87 id. 535.) The facts of this case bring it precisely within the principle of the cases cited. It appears that Ayers and Hamilton, the mortgagees, by quitclaim deed conveyed the entire block' to Benjamin F. Sherman, and plaintiff deraigns his title directly from Sherman by mesne conveyances. On the other hand, Hall conveyed his interest in block ninety (90) to Louis Bush, and Bush conveyed the lot in controversy to defendant. Under this state of facts all that Hall could convey to Bush was his equity of redemption in the premises. It was all the title that was in him, and of course Bush could convey to defendant no greater interest in the property than he had acquired from Hall. It would seem clear the utmost defendant could claim, even if the mortgage was not foreclosed so as to cut off the equity of redemption, is, that he has an equitable interest in the property. But the rule of law is well settled, at least in this State, that if the legal title to lands is challenged, it can not be adjudicated in a court of law. The aid of a court of equity must be invoked in such cases. Should it be conceded defendant has an equitable interest in the property, it could not be set up as a defence to this action. This vieiv of the case does not seem to have been presented when the case was before this court on a former appeal, or if it was, it was not discussed in the opinion or passed upon by the court, and the question now made is now open to determination, unaffected by the former decision. Cowen v. Loomis, 91 Ill. 132.

There is another branch of the case that will now be considered. On the 23d day of March, 1857, Hall entered into an agreement with Joseph Smith to convey to him, by warranty deed, the west half of block ninety (90) on the payment of $18,000, one-fourth cash, and the balance in equal annual installments. Time was made of the essence of the contract. That contract Smith was unable to perform, and afterwards, on the 28th day of May, 1860, he reconveyed to Hall the property he had contracted to sell to him. That was really a cancelling of the contract between Hall and Smith, and so the parties seem to have regarded it. According to the testimony of defendant, on the 1st day of March, 1857, he entered into a contract with Smith, by which Smith agreed to convey to him the property in controversy, which is a part of the west half of block ninety (90), on the payment to him of $625, part in cash, and the balance in installments. On his contract with Smith defendant seems to have paid $181, and then ceased to make further payments.

It will be seen that on the back of the contract between Hall and Smith there was written an agreement, signed by Ayers and Hamilton, of the date of March 23, 1857, to the effect that in the event of payment to them by Hall, at maturity, of the. installment of the purchase money to become due on' May 23, 1857, they would hold the west half of block ninety (90) liable for only one-half of the residue of the unpaid purchase money owing by Hall. The contract between Smith and Hall, with the agreement indorsed thereon, was recorded on the 24th day of March, 1857. It is under that agreement he claims that he acquired title to the lot in suit. There are at least two conclusive answers to the position taken. One reason is, it does not appear certainly that defendant obtained title to this property under his contract with Smith. As has been seen, defendant ceased to make further payments to Smith, and no further payments were in fact made by him to any one under his contract with Smith. Defendant seems to have made a new contract with Bush for the property, and paid him for it in four annual installments, of $200 each. Four notes, of $200 each, executed by defendant, payable to his own order, and by him indorsed, were produced, and his testimony is, that he paid them, and that “they were given for the purchase money on this deed from Bush.” That would appear to be a purchasing of the property from Bush directly, under a new contract. But a more satisfactory reason is, that Bush never had the legal title to the property, and of course he could not convey to defendant what he did not have. As has been seen, Smith was unable to comply with his contract with Hall, and it was in fact cancelled. That was an end of the contract between Smith and Hall, and with the cancellation of that contract the agreement of Ayers and Hamilton, written on the back of it, became inoperative. Thereafter there was no contract to perform, and no one. had the slightest interest in having further payments on the notes secured applied in reduction of the mortgage indebtedness on the west half of the block, and no one gave the matter the slightest attention. Hall was obligated to pay the entire indebtedness, and Smith had ceased to have any interest in the property. Bush took his deed from Hall for the property subject to the mortgage indebtedness. As has been seen, by the terms of the contract between Smith and Hall time was made an essential part of it. A failure to make payments as they matured authorized Hall to declare the contract forfeited. Had Hall done so, it would hardly be insisted that any one could thereafter claim anything under the contract. Defendant’s interest in the property 'would be forfeited when Smith’s interest should be declared forfeited. Certainly he could claim nothing under the contract that Smith could not do. What possible difference could it make whether Hall declared the contract forfeited for non-compliance with its terms, or whether it was cancelled by Smith»’s consent, when he discovered he could not perform it? In either event the contract was absolutely at an end, and how it was annulled is a matter of no consequence.

It will be observed that Bush did not attempt to convey this property to defendant until the 25th day of February, 1871. In 1863 Bush’s equity of redemption in the property,— and that was all he ever had,—was cut off by a sale made by Sherman, who was the assignee of Ayers and Hamilton, under the power contained in the mortgage. Whether that sale was regular or irregular, it was effectual to bar the equity of redemption of the mortgagor, and all claiming under him, until it should be set aside by a court of competent jurisdiction, and that has not been done. That sale under the power contained in the mortgage has not only not been set aside, but it has been expressly confirmed by this court in Bush et al. v. Sherman, 80 Ill. 160. A bill was filed by Bush and others, asking to have set aside Sherman’s deed, as trustee, to Nichols and Colfax, who were purchasers at the trustee’s sale, and their deeds to Mrs. Cleaver, and complainant let in to redeem the property on payment of what was due on the mortgage, and if, for any reason, that specific relief could not be granted, they might have a decree for compensation. It appeared in that case the installment maturing on the 23d day of May, 1857, was in fact paid, but before any other payments were made Smith r'eeonveyed. the west half of the block to Hall, he being unable to comply with his contract, and hence it was said there was no necessity for having further payments made by Hall applied in reduction of the incumbrance on that portion of the property, and neither Hall nor any one else ever asked to have them, nor were they ever, so applied. It was therefore held, there was no release of the west half of the block under the agreement with Ayers and Hamilton, and that the sale made by the trustee was valid.

Great stress is laid on» that clause of the opinion in Bush v. Sherman which says, “clearly, any one claiming under Smith, as grantee, would be entitled to the benefit of the contract, but Hall claimed nothing as the grantee of Smith.” It might have been added, with great propriety, that nobody else claimed under the Smith contract, for it is said, in the very next sentence, that “what was done-was the cancellation of the contract of sale—that was the effect of the reconveyance.” Nothing could have been meant by the expression used more than to say,' had Smith assigned his contract with Hall, and such assignee had performed it, he would have been entitled to the benefit of the agreement with Ayers and Hamilton; but there is no pretense Smith ever assigned his contract with Hall to any one, or that any one ever made the slightest effort to perform it. But be the law on this branch of the case as it may, in no view that can be taken did defendant acquire, by his deed from Bush, anything more, if that, than an equitable title to the property, and that can not prevail against the legal title of plaintiff.

I am therefore of opinion the judgment of the Superior Court should be reversed.


author: Mr. Justice Sheldon

text:
    Asahel Gage v. Adlai T. Ewing.

      Filed at Ottawa May 10, 1883.

    1. Constitutional law—-act to quiet title and remove cloud on title is not unconstitutional, as depriving party of trial by jury. The act providing that a court of chancery may hear and determine bills to quiet title, and to remove, clouds from the title of real estate, where the lands are unimproved and unoccupied, is not in violation of the constitutional guaranty of trial by jury, as courts of chancery may submit issues of fact to trial by jury. If such right should be refused by the court, the denial thereof would come from the court, and not from the law.
    2. Jury trial—right to, in case in equity. Where jurisdiction is bestowed by statute upon a court of chancery in a case where there existed before the adoption of the constitution a remedy at law, under which was given the right of trial by jury, it is presumed such a trial would be allowed, if asked, on a trial in chancery, and obedience paid to the constitutional provision giving such right.
    3. Eormer adjudication—sufficiency of plea in chancery case. To a bill in chancery to set aside two tax deeds held by the defendant as a cloud on complainant’s title, the defendant pleaded in substance that the complainant purchased the property in question during the pendency of a bill in equity filed by his grantor against this defendant for the same purpose as the present bill; that the former cause was brought to issue, and the bill dismissed for want of equity, and such former adjudication is set up in bar of this suit: Held, that while the plea did not come up strictly to the requirements of the authorities, it was substantially sufficient, under our practice, without reciting all the allegations of the former bill, as avoiding prolixity in pleading.
    Appeal from the Circuit Court of Cook county; the Hon. Thomas A. Mokan, Judge, presiding.
    Mr. Augustus N. Gage, for the appellant:.
    A bill will not lie to remove a cloud upon the title to unimproved and unoccupied land, the complainant in such ease having an adequate remedy at law in the action of ejectment. The record upon this question presents for consideration the constitutionality of that portion of section 50, chapter 22, Eev. Stat. 1874, which provides that a party claiming to own unimproved or unoccupied land may file a bill in equity to remove clouds from its title.' There is no question this bill would not lie but for this statute, and it' is equally settled that ejectment is the proper action to try titles, and this without regard to the possession. 3 Blackstone’s Commentaries, 201, 203; Adams on Ejectment, chap. 5, p. 221.
    Ejectment may be brought for vacant and unoccupied land against any one claiming title thereto or some interest therein. Sec. 7, of the Ejectment aet.
    Prior to 1869 a bill of this kind would not lie in respect to unimproved or unoccupied land, because of the remedy at law; but by the act of 1869 a court of equity was invested with jurisdiction, and the defendant thereby lost his constitutional right of trial by jury, which he before had always enjoyed.
    As bearing on the right of trial by jury in such case, counsel cited Const. 1848, sec. 8, art. 13; Gage v. Rohrback, 56 Ill. 262; Wing v. Sherer, 77 id. 200;. Whitney v. Stevens, 97 id. 482; Ward v. Farwell, id. 593.

      A purchaser pendente lite is estopped by the decree against his grantor, and he can not file a new bill against the same defendant for the identical relief denied his grantor.
    Messrs. W. G. & A. T. Ewing, for the appellee;
    Equity jurisprudence is as much a part of our administration of justice as the common law. Const. 1870, sec. 12, art. 6; Hurd’s Stat. 1880, sec. 1, chap. 22; sec. 1, chap. 28.
    Cancellation of deeds has ever been a branch of equity jurisprudence. 1 Story’s Eq. Jur. sec. 700, et seq.

    In the absence of the statute in question, we believe a person out of possession may maintain a bill to remove a cloud. Hager v. Shindler, 29 Cal. 57; Thompson v. Lynch, id. 189.
    One out of possession may maintain a bill against one in possession to set aside a deed fraudulently obtained, which is a cloud upon the title. Redmond v. Packenham, 66 Ill. 437; Kennedy v. Northrup, 15 id. 149.
    Courts of, equity have determined that persons in possession may file a bill to remove a cloud from the title. Gage v. Rohrback, 56 Ill. 262; Gage v. Billings, id. 268; Reed v. Tyler, id. 288; Barnett v. Cline, 60 id. 206; Reed v. Reber, 62 id. 240; Barnard v. Hoyt, 63 id. 341; Richmond v. Packenham, 66 id. 437; Emery v. Cochran, 82 id. 65; Hardin v. Jones, 86 id. 313.
    The second plea,—res judicata,—is defective in not setting forth so much of the former bill as will suffice to show that the same point was then in issue, and does not aver that the allegations as to the title to relief are the same in the present bill as in the first. 1 Daniell’s Chancery Practice, 661.
    This record does not show whether the second plea was overruled by the court because it was defective in point of form or otherwise, or whether the averments of the plea were not true.
   Mr. Justice Sheldon

delivered the opinion of the Court:

Adlai T. Ewing exhibited in the circuit court of Cook county his bill of complaint against Asahel Gage, setting out, in substance, that he was the owner of certain real estate in Cook county; that the land is unimproved and unoccupied; that Gage had two tax deeds thereon; that they are void; and the prayer of the bill is, that the tax deeds may be set aside as clouds upon the title. The defendant filed two pleas, which, having been set down for argument, were overruled by the court, and defendant electing to stand upon his pleas, a final decree was entered in favor of the complainant, in accordance with the prayer of the bill, and the defendant appealed.

The first plea sets up that the land mentioned in the bill was unimproved and unoccupied at the time of the filing of the bill, and because thereof, the complainant had an adequate remedy at law.in the action of ejectment. Our Ejectment act gives the remedy in ejectment where the premises are vacant, section 7 of. the act (Eev. Stat. 1874, p. 443,) providing, “if the premises are not occupied the action shall be brought against some person exercising acts of ownership, or claiming title thereto or some interest therein, at the commencement of the suit.” But on March 15, 1872, the General Assembly passed an act providing that a court of chancery “may hear and determine bills to quiet title and to remove clouds from the title of real estate when the lands are unimproved and unoccupied. ” (Laws' 1871, sec. 50, p. 337.) It is the question of the constitutionality of this statute, when, as in the case at bar, the cloud sought to be removed is but a mere adverse legal title to the land, which is presented for our consideration under thé first plea.

The constitution of 1870 (art. 2, sec. 5,) declares, “the right of trial by jury, as heretofore enjoyed, shall remain inviolate.” As at the time of the adoption of the constitution there existed the remedy at law, by action of ejectment, for the recovery of lands which were unimproved and unoccupied, where there was full enjoyment of the right of trial by jury, it is contended that this subsequent act of March 15, 1872, giving jurisdiction to a court of chancery to remove clouds from the title of real estate, is repugnant to the above constitutional provision, as being in interference with the right of trial by jury as enjoyed at the time the constitution was adopted. As this statute is, substantially, but a reenactment of a similar law of 1869, (Laws 1869, p. 356,) question might be made whether, on that account, the statute could be in violation of the guaranty, by the constitution of 1870, of the right of trial by jury “as heretofore enjoyed.” But we waive that, and will consider the law as first having existence in 1872.

Admitting that by this statute there may be drawn into investigation and determination, in chancery, questions of mere legal title to lands, where, before, the remedy was only by action of ejectment at law, it does not follow that there would, from the statute, be any impairment of the right of trial by jury. Conferring jurisdiction in chancery is not excluding trial by jury. Courts of chancery may submit issues of fact to trial by jury, and although it is discretionary to do so in their ordinary course of practice, yet where there comes bestowal upon such a court jurisdiction in a case where there existed, before the adoption of the constitution, the right of trial by jury, it is to be presumed that there would be, in such case, allowance of jury trial,—that there would be obedience to the constitutional injunction that the right of trial by jury, as enjoyed at the time of the adoption of the constitution, should remain inviolate. Should there at any time, in such a case, be denial of such right, then there might arise ground of complaint of the violation of this right of jury trial secured by the constitution; but it would come from the action of the court in the administration of the law, and not from the statute itself. It does not, in its purport or necessary result, abridge the right of trial by jury. It must be left with the legislature to regulate, or entirely destroy, the boundary between the jurisdiction of courts of law and of chancery, as in its wisdom may seem best. We do not regard the statute of March 15, 1872, obnoxious to the constitutional objection which is .urged against it. The first plea, then, was properly overruled.

The second plea alleges that the complainant purchased the property in question during the pendency of. a bill in equity, filed by his grantor against this defendant for the same purpose as the present bill; that the former cause was brought to issue, and the bill dismissed for want of equity, and such former adjudication is set up in bar of this suit. The objection which appellee takes to this second plea is, that' it is defective in not setting forth so much of the former bill as will .suffice to show that the same point was then in issue and in not averring that the allegations as to the title to relief are the same in the present bill as in the first, and reference is made to 1 Daniell’s Chancery Practice as sustaining the objection. The plea does aver, in this respect, that the subject matter and grounds of relief of the present suit áre identical and the same as the subject matter and grounds for relief in the former cause. While this, perhaps, does not come up strictly to the requirement of the authorities, we are inclined to hold it to be substantially sufficient. Story lays it down: “Upon a plea of a former decree, so much of the former bill and answer must be set forth as is necessary to show that the same point was then in issue. ” (Story’s Eq. PI. sec. 791.) The plea seems to allege, in substance, that the former .bill stated the same grounds for relief and asked the same redress this bill was seeking, and we think that under our practice this was enough, without the recital of the allegations of the former bill in that regard. It conforms to the mode at law of pleading a former adjudication, and we do not see why it may not suffice as well in a court of chancery. It is a desirable object to save prolixity in pleading, so far as may be. We hold the plea as sufficiently definite, in the respect named, to call for a replication to it.

Because of the overruling of the second plea the decree will be reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Decree reversed.