#### William Whalen v. Harry L. Muma.

1. Practice— Object of a Bill of Exceptions.—The object of a hill of exceptions is to preserve in the record such matters as occur during the trial which are not a part of the record without it.

3. Record—What it Includes in a Suit at Law.—The record proper in a suit at law includes the declaration, pleas, demurrer, if any, judgment upon it, or other judgment interlocutory or filial.

3. Exceptions—When Unnecessary. —It is not necessary to except to a judgment upon a demurrer to enable the party aggrieved to have the decision reviewed by the Appellate Court.

4. Appellate-Court Practice— Waiver of a Demurrer.—A defendant filed two special pleas, to each of which a general demurrer was sustained, and leave given to file additional pleas; in pursuance he filed one additional plea, which was substantially a repetition of the first original plea, and to which a demurrer was again sustained. Held, that there had been no pleading over as to second original plea, and the question as lo whether the trial court erred in sustaining the demurrer to such second original plea was properly before the Appellate Court.

Assumpsit.—Appeal from the Superior Court of Cook County; the Hon. Jesse Holdom, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1900.

Reversed and remanded.

Opinion filed April 16,1901.

*489James D. Springer and Hiram I. Keck, attorneys for appellant.

Jesse A. & Henry E. Baldwin, attorneys for appellee.

¥b. Justice Freeman

delivered the opinion of the court.

Appellant is sued upon a promissory note for §274, dated October 1,1898, payable on demand to the order of appellee, bearing interest at seven per cent.

In addition to the plea of non-assumpsit in the usual form with an affidavit of merits, appellant filed two special pleas, which were demurred to generally. The Superior Court sustained the demurrers to each of said special pleas, but granted leave to file additional pleas; and in pursuance of such leave, an additional plea was filed. This was, however, substantially a repetition of the first of said original pleas, except that it averred the state of facts set up in the plea existed at the time of the delivery as well, as signing of the note sued on. To this additional plea a general demurrer was also sustained. It is contended that the Superior Court erred in sustaining demurrers to said special and additional pleas.

In answer to this objection it is urged in behalf of appellee, that the action of the trial court in sustaining the demurrers to the first and second special pleas is not open to review by this court, because it is said the error, if any, was waived when appellant obtained leave and filed an additional special plea. We regard this as true, without question, so far as the first of said original pleas is concerned, which was amended and refiled as an additional plea by leave of court. But as to the second of the two original special pleas no effort was made to amend it, nor was anything filed as a substitute therefor. Ho attempt was made to set up the facts therein stated in any other form or manner. HTothing appears to indicate that appellant acquiesced in the decision sustaining the demurrer thereto, or that he waived the error of which he complains, or did anything that can be so construed. In the case of Dunlap v. C., M. & St. P. Ry. Co., 151 Ill. 409 (421), re*490ferred to by appellee’s attorneys, it appears that the defendant did acquiesce in the decision overruling his pleas, and having obtained leave to plead over, filed three new pleas. It was held that, so far as the pleas which had been overruled were concerned, no question was presented for consideration by the reviewing court. That decision was undoubtedly correct as applied to the pleadings in that particular case. But it would, we think, be going too far to say, Avhere leave is obtained after demurrer sustained to file additional pleas and under such leave one only of the former pleas is slightly amended, that this must be invariably construed as acquiescence in the ruling of the court sustaining the demurrer as to the other plea or pleas, so as to preclude the right to question such ruling in the reviewing court, even though it is apparent that the party intends to stand by the plea which he has taken no steps to amend or modify or substitute a new plea or issue in place of, or assume a new position in reference to. It is plain that as to such plea there has been no pleading over in any sense. In such case it is not necessary to preserve the ruling objected to by bill of exceptions. “ The object of a bill of exceptions is to preserve in the record such matters as occur during the trial which are not a part of the record, and in such cases the erroneous ruling must be excepted to.” McChesney v. City of Chicago, 151 Ill. 307 (308). But the record proper in a suit at law included “ the declaration, pleas, demurrer, if there is any; also any judgment upon demurrer or other judgment interlocutory or final.” Baldwin v. McClelland, 152 Ill. 42 (52). It is not therefore necessary “ to except to the judgment on a demurrer to enable the party to have the decision reviewed in the Appellate Court,” and “ it would be improper practice to embody a judgment on a demurrer in a bill of exceptions.” Hamlin v. Reynolds, 22 Ill. 207. It is said, however, that when a party does plead over he can still avail himself of,the error in sustaining a demurrer to his pleadings by preserving the original pleadings and rulings by bill of exceptions. PoAveli on Appellate Proceedings, Chap. IV, Sec. 99, 130. In the present case we *491hold that there was no pleading over as to the second original plea, and that the question as to whether the trial court erred in sustaining the demurrer thereto is.properly before us. In this connection see Washburn v. Roberts, 72 Ind. 213 (215).

The second special plea now in question is too long to be herein set out in full. It does not need to be said that the demurrer admits the truth of such averments' therein as are properly pleaded. These averments are in substance that the sole consideration for the note sued on was, and is, moneys belonging to, and the property of the Whalen Company, delivered by appellee to him as its treasurer, and that that company is, and at all times has been, the real and beneficial owner of said note, and that appellee holds, and at all times has held it as such treasurer; and that at the time of the delivery of said moneys to appellant, and at the time of the execution and delivery of said note, said company was, ever since has been, and still is indebted to appellant to an amount largely in excess of the principal and interest of said note, etc. It is the appellant’s contention that the money, for which the note sued on was given, was money held by appellee as treasurer of the Whalen Consolidated Mining Company, an Illinois corporation, which money appellee had been directed to pay over to appellant for expenditure in developing the mines of said company, and that it was so expended by appellant together with other money of his own. It is claimed that appellee procured appellant’s signature to the note by misrepresenting the money as his own, and as advanced by him personally to appellant as a favor; whereas in fact it was money of the company, which was at the time indebted to appellant in a sum largely in excess of the amount of the note. If it be true that the note is held by and for the company, although in appellee’s name, and that the company owes appellant more than is due thereon, we are at a loss to perceive why the facts averred in the plea do not constitute a valid defense to the present suit. JSTo reason to the contrary is pointed out in appellee’s brief.

*492We agree with appellee’s counsel that there are technical defects in the additional plea which make it obnoxious to demurrer. But as the case must be sent back for a new trial, there will be opportunity to amend, if counsel so desire.

For the error in sustaining the demurrer to the second original plea, the judgment of the Superior Court must be reversed and the cause remanded.