#### Joseph Elia, Appellant, v. Frank Bavuso and Vincenzo Guglielmo, Appellees.

Gen. No. 22,686.

(Not to be reported in full.)

Abstract of the Decision.

1. Appeal and error, § 866 * —when question of refusal of instruction will not he reviewed. Where a hill of exceptions was made a part of the record but was not abstracted, and the abstract did not show the evidence, held that it would he impossible to determine the propriety of the refusal of an instruction based upon the showing of the evidence.

2. Appeal and erbor, § 426*—what is effect of failing to stand hy demurrer. A party who does not stand by his demurrer but elects to plead to the merits cannot assign the overruling of the demurrer as error.

3. Principal apto surety, § 45*—when judgment in favor of one defendant in action on hond is proper. In an action against the principal and surety on a bond, held that a judgment in favor of one defendant against the plaintiff on recoupment or set-off was proper.

Appeal from the County Court of Cook county; the Hon. Benjamin Bell, Judge, presiding. Heard in this court at the October term, 1916.

Affirmed.

Opinion filed March 12, 1917.

Statement of the Case.

Action by Joseph Elia, plaintiff, against Frank Bavuso and Vincenzo Guglielmo, defendants, to recover upon a contractor’s building bond, to which the defendant principal on the bond filed a plea of set-off. From a judgment for defendants on such plea for one hundred and fifty dollars, plaintiff appeals.

A. G. Dicus, for appellant.

Vincent D. Wyman, Harry C. Kinne and Charles E. Carpenter, for appellees.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Dever

delivered the opinion of the court.