Rank v. The People. In Prichard v. The People, 149 Ill. 50, it seems to have been urged by counsel for the people, that if the offense was so plainly charged that its nature could be easily understood by the jury, that was sufficient, in respect to which the court say: "Whether the description of the offense is so plain that its nature could be easily understood by the jury, must depend on whether it is described with at least a reasonable degree of certainty, using the term 'certainty' in its common law sense." The indictment was for bigamy, and alleged that the defendant married one Virginia M. Lewis, " well knowing the said Eliza Ann Ferguson, his former wife, was then alive." The court held that this was not a sufficient averment that the former wife of the accused was alive; that the rules of pleading required a direct and positive averment that the former wife was living at the time of the second marriage; and the judgment of conviction was reversed. Section 82 of chapter 46 of the statutes, provides: "Whoever * * * * * changes a ballot of an elector, with intent to deprive such elector of voting for such person as he intended, * shall, on conviction thereof, be fined in a sum not exceeding $1,000, or imprisoned in the county jail not exceeding one year, or both, in the discretion of the court." In Hunter v. The People, 52 Ill. App. 367, the indictment charged that Hunter, "at an election being held in the town of Mount Zion, in the county of Macon, for the election of town officers for said town, unlawfully, willfully and deceitfully, did change a certain ballot of one John Tohill, who was then and there an elector of said town, in the county aforesaid, with intent then and there, unlawfully to deprive the said John Tohill, as such elector, of voting for one David C. Davidson, for the office of supervisor of said town of Mount Zion, as he, the said John Tohill, then and there intended, contrary to the form of the statute," etc. The court, after suggesting numerous ways in which the change of the ballot might have been made, held that it was necessary for the indictment to specify the acts of the defendant in the premises, the manner in which he changed the ballot, and the judgment was reversed. The court quotes with approval the following from Wharton on Crim. Pl. and Prac.: "A statute on creating a new offense describes it by its popular name. It is made indictable, for instance, to obtain goods by falsely personating another. But no one would maintain that it is enough to charge the defendant with falsely personating another.' So far from this being the case, the indictment would not be good unless it stated the kind of personation, and the person on whom the personation took effect. An act of Congress makes it indictable to make a revolt,' but under this act it has been held necessary to specify what the revolt is. Fraud in elections in a Pennsylvania statute is made indictable; but the indictment must state what the fraud is. It is not enough to say that the defendant 'attempted an offense, though this is all the statute says; the particulars of the attempt must be given. Not a qualified voter' in a statute must be expanded in the indictment by showing in what the disqualification consists." In the present case, the specific threat averred, viz., to accuse Anderson of "selling intoxicating liquors, without then and there having a legal license to keep a dram-shop," does not describe or charge a misdemeanor, and if these words be rejected as surplusage, leaving the charge that plaintiff in error did unlawfully and maliciously, etc., "threaten to accuse the said John II. Anderson of a misdemeanor," the averment is merely of a legal conclusion, and not of a fact, and in view of the authorities cited, facts constituting the crime must be averred. The indictment is clearly bad and insufficient to support the conviction, which being the case, we deem it unnecessary to discuss the evidence. The judgment will be reversed and the cause remanded. Tobin v. French. Cornelia 0. Tobin, Benjamin F. Tobin, Grace L. Boggs and A. W. Tobin v. F. F. French, J. A. Woodbury and E. M. Ashcraft. 1. PRACTICE—Amendments Preserving the Identity of the Action.— Under Sec. 24, Chap. 110, R. S., providing that amendments may be allowed introducing any party necessary to be joined as plaintiff or defendant, and that the adjudication of the court allowing such amendment shall be conclusive evidence of the identity of the action, an order of the Circuit Court upon the plaintiff's motion, permitting all papers and proceedings in an action upon an appeal bond to be amended by changing the name of the plaintiff from the Benjamin F. Tobin Estate," to "Mrs. C. O. Tobin, Grace L. Boggs, Arthur W. Tobin, Cornelia W. Tobin and Benjamin F. Tobin," as plaintiff, is sufficient to preserve the identity of the action. 2. AMENDMENTS-Identity of Parties to Actions Admitted by Demurrer.-Where the plaintiffs in a former action were changed by amendment and their identity is at issue in a suit growing out of such former action, if the declaration alleges that the plaintiffs in such former action, and the one growing out of it, are one and the same, a demurrer to such declaration admits the allegation of identity. 3. PARTIES-Identity of, How Determined on Demurrer.-When the identity of the plaintiffs ina former suit and in an action growing out of such former suit is at issue on a demurrer to the declaration, such identity is to be determined from the face of the pleadings. Debt, upon an appeal bond. Trial in the Superior Court of Cook County; the Hon. JAMES GOGGIN, Judge, presiding. Judgment for defendant, on demurrer to declaration. Appeal by plaintiff. Heard in the Branch Appellate Court, at the March term, 1898. Reversed and remanded. Opinion filed January 24, 1899. This is an action of debt upon an appeal bond. Appellants' declaration recites that plaintiff's, under the name, style and description of the Benjamin F. Tobin Estate, recovered possession of certain premises before a justice of the peace, in an action of forcible entry and detainer, with cost of suit, against the defendant French; that the latter appealed from said judgment to the Circuit Court, and in and by his appeal bond therein filed, it was provided that if he, said French, should prosecute his said appeal with effect, and pay plaintiffs, the Benjamin F. Tobin Estate, all costs, dam ages and loss by plaintiffs sustained, in case said judgment should be affirmed, then the obligation to be void; otherwise to remain in full force and effect. The declaration further recites that upon plaintiffs' motion, the Circuit Court permitted all papers and proceedings in the case to be amended by changing the name of the plaintiff, the Benjamin F. Tobin Estate, to Mrs. C. O. Tobin, Grace L. Boggs, Arthur W. Tobin, Cornelia W. Tobin and Benjamin F. Tobin, as plaintiffs; that thereafter said court affirmed the judgment of the justice of the peace, and that the plaintiffs recovered judgment in said Circuit Court against said French for costs and possession of the premises; and states that "these plaintiffs allege the fact to be that the Benjamin F. Tobin Estate is the name, style and description under which Cornelia O. Tobin, Benjamin F. Tobin, Grace L. Boggs and A. W. Tobin were then doing business," and that the Benjamin F. Tobin Estate, and said last named persons "are one and the same;" that the condition of the appeal bond has been broken, and plaintiffs are entitled to recover. The Superior Court sustained a demurrer to this declaration, and plaintiffs appeal. HOYNE, FOLLANSBEE & O'CONNOR, attorneys for appellants. WILLIAM E. FREER, attorney for appellees. MR. PRESIDING JUSTICE FREEMAN delivered the opinion of the court. It is contended for appellees, in the first place, that in consequence of the amendment stated in the declaration to have been made in the Circuit Court, changing the name of the plaintiff, and substituting for the "Benjamin F. Tobin Estate" the names of individuals alleged to have been doing business under that name, style and description, the plaintiffs who recovered in that suit ceased to be identical with the obligee in the bond, and that the judgment rendered Tobin v. French. therein was not an affirmance of the judgment of the justice which was appealed from, and hence there is no liability. upon the appeal bond. It is expressly provided in the Practice Act (Rev. Stat., Chap. 110, Sec. 24) that amendments may be allowed introducing any party necessary to be joined as plaintiff or defendant, and that "the adjudication of the court allowing an amendinent shall be conclusive evidence of the identity of the action." The language of that section is very broad, and whether the amendment in question was properly within its terms or not, the identity of the action after the amendment, with the suit in which the appeal was taken, can not now be disputed. The judgment in favor of plaintiffs in that suit was therefore an affirmance in the same action of the judgment appealed from. It is contended that the plaintiffs, having been changed by the amendment, their identity with the obligee in the bond was lost. It is alleged in the declaration that "the Benjamin F. Tobin Estate," and the plaintiffs herein, "are one and the same parties," and that the plaintiffs "were at that time trading and doing business" under "the name, style and description" of the Benjamin F. Tobin Estate. If this is true, the change was merely nominal. That allegation of the declaration is admitted by the demurrer. But it is urged that if the identity of the plaintiffs with the obligee in the bond can not be gathered from the face of the instrument, no pleading or parol evidence can be permitted to connect them. The real question, however, is whether, according to the declaration, there is a record in the Circuit Court in the case appealed there from the justice, showing any disposition of that suit between the parties named in the bond, and hence a breach of its condition. Block v. Blum, 33 Ill. App. 643, 644. The declaration avers that the writing obligatory sued upon "was and is subject to a certain condition thereunder written, whereby, after reciting to the effect that the plaintiffs, under the name, style and description of the Ben VOL. LXXX 4 * * * |