both a plea and answer were interposed to the same portion of the bill, and, as here, the complainant, without testing the sufficiency of the plea, joined issue upon both the plea and the answer. Following the text in 16 Ency. of Pl. & Pr. 610, and the case of Seifreid v. People's Bank, supra, the court held that, as the parties litigant and the chancellor had treated the issues as made upon the plea and answer, and testimony had been taken upon the issues so made, the reviewing court would treat it in the same manner, and that the general rule did not apply under those circumstances. This is undoubtedly the correct view to take where the plea was not set down for argument and its sufficiency determined by the chancellor. In such cases, however, the plea is treated merely as a part of the answer and not a plea.

Appellee insists that by filing his plea appellant admitted the allegations of the bill, and that it was not, therefore, incumbent upon her to prove them. This would be true if the plea were in proper form as a pure plea in equity and there had been no answer filed. Perry v. United States School Furniture Co., 232 Ill. 101, 83 N. E. 444. The plea sets up matters dehors the bill, and would be a pure plea if it were in proper form, but it was accompanied by an answer to the whole bill, and appellee was therefore not relieved of the necessity of proving every material allegation of her bill, as under this condition of the pleadings the plea could only be treated as a part of the answer.

As the appellee failed to prove the allegations of her bill and failed to show that she was entitled to the relief sought, the decree of the circuit court is reversed, and the cause remanded for a new hearing. Reversed and remanded.

(281 Ill. 604)

STRALEY v. HOUSE OF GOOD SHEPHERD et al. (No. 11642.) (Supreme Court of Illinois. Dec. 19, 1917.) 1. EQUITY 166, 175-PLEA-FORM. A plea may either be to the whole or a part only of the bill, and if it does not go to the whole bill, it should definitely and exactly press to what part it extends, but this may be determined from the substance of the plea. 2. EQUITY 179-PLEADING NECESSITY OF ANSWER.

A caption of an instrument containing both a plea and an answer is no part of either, and a provision in the caption that it is an answer to one part and a plea to the remainder has no effect. 6. EQUITY 170 - ANSWER OVERRULING PLEA.

An answer to so much of a bill "as is necessary to answer" is an answer to the whole bill and overrules a plea filed with it.

Error to Circuit Court, Cook County; Thomas G. Windes, Judge.

Bill by John F. Straley to enjoin payment of money to the House of the Good Shepherd by the officers of the City of Chicago. Decree for defendants, and plaintiff brings error. Reversed and remanded, with directions.

Charles S. McNett, of Chicago, for plaintiff in error. Samuel A. Ettelson, Corp. Counsel, John S. Hummer, George A. Curran, and James W. Breen, all of Chicago, for defendants in error.

COOKE, J. This writ of error was sued out to review a decree of the circuit court of Cook county dismissing the bill for injunction of John F. Straley, plaintiff in error, against the House of the Good Shepherd (a corporation), Sister Agnes, superioress of the House of the Good Shepherd, the city of Chicago, Eugene Pike, city comptroller, and Charles Sergel, city treasurer of the city of Chicago.

The bill alleges that appellant is a citizen and taxpayer of the city of Chicago; that the House of the Good Shepherd is an institution maintained as an instrumentality of the Roman Catholic Church; that it is a school and institution under church control, within the meaning of section 3 of article 8 of the Constitution of 1870; that the inmates of that institution are reared and taught ac cording to the creed of that church, and are required to participate in religious worship according to its ceremonies; and that the House of the Good Shepherd is a corporation created by a special act of the General Asex-sembly of Illinois in 1867 for the purpose of reforming abandoned women and affording an asylum to such females as have been led away from the paths of virtue. The bill then sets out in full the act incorporating the House of the Good Shepherd, as found in 1 Private Laws 1867, p. 152. It is further alleged that said corporation has established in the city of Chicago an institution known as the House of the Good Shepherd, in which it maintains schoolrooms and chapels or rooms for religious worship, which are used in carrying out and performing the purpose of the corporation. The bill then contains a recital of what is represented to be some of the objects and tenets of the Roman Catholic Church, and of the connection of that church,

A bill to restrain officers of Chicago from paying money to the House of the Good Shepherd under the act of March 31, 1869 (1 Priv. Laws, 1869, p. 254), or under a resolution of the inspectors of the house of correction, states two distinct and several grounds, both of which must be answered.

3. EQUITY 166-PLEAS-PURPOSE.

A good plea in equity must be either an allegation or denial of some leading fact, or. of matters which taken collectively make out some general fact which is a complete defense. 4. EQUITY 170 PLEAS OVERRULED BY Where an answer and a plea cover the same matter, the plea is overruled.

ANSWERS.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

through the Sisters of the Good Shepherd, for the establishment of a department of the with the House of the Good Shepherd, and house of correction of the city of Chicago alleges that the order of the Sisters of the to be known as a house of shelter for the Good Shepherd procured the incorporation more complete reformation and education of of the House of the Good Shepherd, and has females, and that the house of shelter should always kept that corporation under the con- be divided into two divisions, one to be estrol of said order and said church; that the tablished and maintained by the Chicago House of the Good Shepherd was formed and Erring Women's Refuge for Reform, and the now exists for a sectarian purpose; that other by the institution known as the House after the House of the Good Shepherd was of the Good Shepherd, in Chicago. The bill incorporated, the General Assembly, by an alleges further that subsequent to the adopact passed and approved in 1869, provided tion of this resolution girls have been sent that all the fines collected by the city of Chi- by the municipal court of Chicago and by cago from the keepers, inmates, and visitors the juvenile branch of the circuit court of of houses of prostitution should be set aside Cook county to the institution known as the by the city for the sole use and benefit of House of the Good Shepherd instead of being the Chicago Erring Woman's Refuge for sent to the house of correction, and that the Reform and the House of the Good Shepherd, House of the Good Shepherd makes a charge and should be equally divided between those against the city of Chicago of 30 cents per two institutions, setting out the act in full, day for keeping each inmate so sent to it; as found in Private Laws of 1869, vol. 1, p. that the arrangement contemplated and pro254; that said act is in violation of sections vided for by said resolution of September 23, 3 and 8 of article 13 of the Constitution of 1903, is illegal and void, and that payments 1848 and in violation of section 3 of article made thereunder amount to a donation of 2 and section 22 of article 4 of the Constitu- money to an institution controlled by the tion of 1870. The bill then sets out the Catholic Church. The bill prays that said various amounts which it is claimed have statute enacted in 1869 in reference to money been paid to the House of the Good Shepherd received from fines be decreed to be in violapursuant to this act from April 1, 1869, to tion of the Constitution of 1848 and of the December 31, 1915, making a total of $137,- Constitution of 1870, and that the city of 959.41. It is then alleged that the comp- Chicago, and the comptroller and treasurer troller and treasurer of the city of Chicago of the city, and their successors, be restrained consider themselves bound to make such pay- from paying or directing the payment of any ments under the said act of 1869, and that money of the city of Chicago to the House of they will continue to make payments there- the Good Shepherd or any money collected under indefinitely unless restrained by order from persons found guilty of violating any of court; that the institution known as the ordinance or statute relating to prostitution, House of the Good Shepherd receives and and that the House of the Good Shepherd cares for a large number of women who and Sister Agnes may be restrained from are sent to it by the municipal court of Chi- collecting or receiving the same, or any part cago or by the juvenile branch of the circuit thereof, from the city of Chicago, that the court of Cook county, and now and for many court decree that the House of the Good years past has been collecting and receiving Shepherd acquired no rights under the said from the city of Chicago, out of money raised statute of 1871, or under said resolution, to by general taxation, approximately $4,000 per collect money from the city of Chicago for month; that said money, in form, is paid to keeping or caring for girls or women sent or the House of the Good Shepherd by way of committed to the institution known as the compensation, but, in fact, is a donation of House of the Good Shepherd by the municipal public money in aid of the Catholic Church; court of Chicago or the juvenile branch of that plaintiff in error is informed and be- the circuit court of Cook county, and that lieves that these payments are justified by the city of Chicago, and the city comptroller the House of the Good Shepherd and by the and city treasurer, be enjoined from paying treasurer and comptroller of the city of Chi- or ordering paid to the House of the Good cago under a statute approved April 25, 1871 Shepherd any money of the city of Chicago (Laws 1871-72, p. 481), whereby the city of for or on account of the keeping of such perChicago was authorized to establish a house sons at said institution known as the House of correction to be under the control of a of the Good Shepherd and from paying to it majority of a board of inspectors, and that any money whatever except upon the judgsection 12 of said act (which is set out in ment of a court of competent jurisdiction, full) provides that said inspectors of the and that the House of the Good Shepherd house of correction may establish a depart- may be restrained from receiving the same, ment thereof to be called a house of shelter and may be required to refund, with interfor the more complete reformation and educa- est, to the city of Chicago all money paid to tion of females. The bill then sets out in full it either as part of the proceeds of fines cola resolution passed by the board of inspectors lected under the act of 1869 or under the of the house of correction of the city of Chi-guise of compensation for keeping girls or

Chicago or the juvenile branch of the circuit to help support or sustain any school, acadecourt of Cook county.

my, seminary, college, university, or other literary or scientific institution controlled by any church or sectarian denomination; and that the payment of one-half of the amount of any fines to the House of the Good Shepherd is not a grant or donation of money by the state of Illinois to any church or for any sectarian purpose. The pleas then conclude with the same allegations contained in the answers in reference to the charge in the bill that girls are sent to the house of shelter by the juvenile branch of the circuit court of Cook county, and the same denials as were contained in the answer to the charge that the money received was paid or used for religious instruction and sectarian purposes.

Exceptions to the answers were overruled, and the pleas were set down for argument and allowed. Plaintiff in error declined to reply to the answers or to the pleas. A decree was entered allowing the pleas, finding the facts in accordance with the allegations of the answers and pleas, and dismissing the bill for want of equity.

To this bill Sister Agnes and the House of the Good Shepherd each filed an answer and a plea, and the city of Chicago, the comptroller, and the city treasurer filed a joint and several answer and plea. These answers and pleas were all identical. The answers denied that at any time there were any inmates of the House of the Good Shepherd committed to it by the juvenile branch of the circuit court of Cook county, or that by a contract or arrangement between the city of Chicago and the House of the Good Shepherd an amount of 30 cents per day per girl is to be paid to the House of the Good Shepherd for the care, clothing, tuition, board, lodging, education, religious instruction, and maintenance of said inmates, as alleged in the bill, and say that the inmates referred to in the bill are girls who have been committed by the juvenile branch of the circuit court of Cook county to the house of correction of the city of Chicago, and that said house of correction, by resolution thereinafter set forth in the plea, to which reference is made, established in connection with and as part of said house of correction a house of shelter for the care of girls committed to the house of correction by the juvenile branch of said circuit court, and that one branch of said house of shelter was established at the institution conducted by the House of the Good Shepherd, and that said girls are sent to said house of shelter by the authority of said house of correction, and are not committed to the House of the Good Shepherd by the circuit court. Each answer further says that the payments of 30 cents per day made by the city of Chicago | to the House of the Good Shepherd for each of said girls while in said institution are payments made by the city of Chicago to the House of the Good Shepherd for the board, lodging, clothing, education, and maintenance of said girls while maintained in the said house af shelter, and no part of said money is paid or used for religious instruction of the said girls or for sectarian pur-proper officers from paying to the House of poses.

[1] In his exceptions to the answers plaintiff in error asked that defendants in error be required to specify with more exactness to what part of the bill they answered and to what part they pleaded, and he insists here that it is impossible to determine what portion of the bill was answered and to what portion the pleas applied. A plea,. like a demurrer, may be either to the whole or to a part only of the bill. If it does not go to the whole bill, it should definitely and exactly express to what part it extends. Story's Eq. Pl. (10th Ed.) § 693; Snow v. Counselman, 136 Ill. 191, 26 N. E. 590. This may be determined either from the substance of the plea or by express reference therein to the part of the bill to which the plea is interposed. The subject-matter of the pleas and answers filed in this case clearly discloses the portions of the bill to which each applies.

[2] By his bill plaintiff in error sought relief in two particulars: First, to restrain the

the Good Shepherd the fines specified in the By the several pleas the said acts of March act of 1869; and, second, to restrain them 7, 1867, and March 31, 1869, are again set from the payment of any money by reason out in full, as is the resolution passed Sep- of the arrangement provided for by the resotember 23, 1903, by the board of inspectors of lution passed by the board of inspectors of the house of correction. The pleas allege the house of correction of the city of Chicago that the House of the Good Shepherd exer- on September 23, 1903. The pleas filed were cises none of its rights granted to it without evidently intended to be anomalous, and each the state of Illinois, and that it enjoys or of them sought to show that defendants in exercises no rights or privileges other than error should not be required to answer the such as are conferred by the provisions of bill in either of these two particulars. The its charter; that its charter was not intend- two grounds upon which plaintiff in error ed to, and does not, authorize or empower it sought the relief prayed are distinct and sevto engage in or carry on any religious or sec- erable. It does not necessarily follow, if tarian work; that the said act of March 31, he was entitled to relief upon one ground, 1869, does not authorize or empower the that he would be entitled to it upon the othpayment by the city of Chicago of any money er. He might be able to secure relief upon in aid of any church or sectarian purpose or one ground and be denied it upon the other.

ing upon the question the chancellor said:

[3] In equity the defense proper for a plea | intended to be covered by the plea. In passis such as reduces the cause, or some part of it, to a single point. In order to be a good plea it must be either an allegation or a denial of some leading fact, or of matters which, taken collectively, make out some general fact which is a complete defense. Story's Eq. Pl. (10th Ed.) § 652; Stephens v. St. Louis Union Trust Co., 260 Ill. 364, 103 N. E. 190. As to the first ground for relief, the pleas do not negative any fact alleged in the bill, but set up conclusions of law only, and in this respect do not constitute proper pleas, and for this reason alone they should have been overruled.

[4] Plaintiff in error insists that the pleas are overruled by the answers, and this contention must be sustained. An examination of the pleas discloses that as to the second ground for relief they were intended to cover the portion of the bill covered by the answers. The office of a plea in equity is to present such a defense as shows that the defendant should not be compelled to answer. If such a plea is filed, an answer repeating the same matter will overrule the plea, as the defendant will not be permitted by plea to aver that he ought not to be compelled to answer and at the same time to put his defense as to the same matter into the form of such an answer as the bill calls for. Story's Eq. Pl. (10th Ed.) § 688; Beach on Modern Eq. Pr. § 299; 16 Ency. of Pl. & Pr. 609; Weber v. Fitzgerald (No. 11736) 118 N.

"By referring to the commencement of the answer, it will be seen that it purports to be an answer to the whole bill, without excepting those parts to which the defendant has pleaded in bar, both as to the discovery and relief. The defendant may plead, answer, and demur to the same bill, but each of these defenses must refer to, and profess in terms to be put in as a defense to, separate and distinct parts of the bill. Thus, if an answer commences as an answer to the whole bill, it will overrule a plea or demurrer to any particular part of the bill, although the defendant does not, in fact, answer that part of the bill which is covered by the plea or demurrer. I see no objection, except as to the convenience of reference, in permitting the answer to precede the plea, as has been done in the present case. But then the pleader must, by a reference to the part of the bill which is subsequently covered by the plea, or otherwise, show that it is an answer to the residue of the bill only. As the answer in this case commences and concludes as an answer to the whole bill, in the same manner as if it was not intended to be followed by a plea as to part, in point of form the plea is overruled by the answer, and cannot therefore be allowed."

* * *

The pleas should have been overruled, and for the error committed in allowing them the decree of the circuit court is reversed, and the cause is remanded, with directions to overrule the pleas, with leave to defendants in error to plead or answer further if they so desire.

Reversed and remanded, with directions.

(281 III. 365)

E. 50; Souzer v. De Meyer, 2 Paige (N. Y.) PEOPLE ex rel. SHAW, County Collector, v. 574; Ocala Foundry and Machine Works v. Lester, 49 Fla. 347, 38 South. 56, and cases there cited.

[5] The answer and plea of the respective defendants are included in one instrument; the answer in each instance preceding the plea. Each of these instruments contains a caption which states that it is the answer of the defendant to a part of the bill of complaint and his plea to the remainder of the bill. This caption is no part of the answer or of the plea.

[6] Each answer commences as an answer to the whole bill, and as the language is the same in each answer, except as it varies to apply to one defendant in two instances and to three defendants in another, we will quote the commencement of the answer of Sister Agnes, which is as follows:

STEWART et al. (No. 11729.)

(Supreme Court of Illinois. Dec. 19, 1917.) 1. SCHOOLS AND SCHOOL DISTRICTS 42(2)— ANNEXATION TO HIGH SCHOOL DISTRICTVALIDITY "TOWNSHIP.' 99

School Law (Hurd's Rev. St. 1915-16, c. 122) § 86, provides for the organization of a township high school. Section 87 provides that two or more adjoining townships, or two or more adjoining school districts, whether in the same or different townships, may, upon petition of at least 50 legal voters in each of the townships or school districts, or if a school district contains fewer than 150 voters, then by at least one-third of the legal voters of such district, and upon an affirmative vote in each of such townships or districts, at an election held pursuant to the provisions of section 85 of this act, esfor township high schools, a high school for the tablish and maintain, in the manner provided benefit of the inhabitants of the territory described in such petition. Section 88 provides "This defendant, now and at all times saving of parts of adjoining townships, who are now that the inhabitants of any territory composed and reserving unto herself all advantage of ex- maintaining a high school and who have elected ception that can be taken to said bill of complaint as amended, for answer to so much there-into a high school district by a petition signed a board of education, may create such territory of as she is advised it is necessary for her to by 50 legal voters of such district and an afanswer, says." firmative vote in such district, and may elect The answers contain no formal conclusion. a board of education therefor, as in other high school districts. In Leacraft v. Demprey, 4 Paige (N. Y.) been included in a high school district pursuant When part of a township has 124, the same situation was presented as to any of the provisions of this act, the remainhere, and it was held that the plea was over- der of such township, not included in any high ruled by the answer, although it was appar- school district, shall constitute a township for high school purposes. Section 89 provides that ent that none of the facts stated in the anany school district having a population of 2,swer did, in fact, cover the part of the bill | 000 inhabitants or more may, in the manner