contract having a tendency to induce either party to conceal anything or to bargain against a criminal prosecution. Compounding a criminal offense is illegal, but if the sole purpose of a contract is to recover property, even by a compromise of the civil liability, it is valid. The offense consists of perverting public justice in some way by making a bargain to allow the criminal to escape conviction or showing some favor to him for that purpose. 6 Am. & Eng. Ency. of Law, (2d ed.) 410; 8 Cyc. 493; Ward v. Lloyd, 46 Eng. C. L. 785; Schrim v. Wieman, 63 Atl. Rep. (Md.) 1056; Schommer v. Farwell, 56 Ill. 542; Portner v. Kirschner, 169 Pa. 472; DeSteuben County Bank v. Mathewson, 5 Hill, 249; Plant v. Gunn, 2 Woods, 372.

The defendant had a right to plead facts showing the contract to be invalid as against public policy or a statutory provision, and he attempted to do that by the eighth plea. That plea alleged that the plaintiff "knew of the whereabouts of divers moneys and personal property and effects, the subjects of larceny, the property of and rightfully belonging to the defendant, and that the said moneys and property belonging to the defendant aforesaid had been unlawfully and feloniously stolen and carried away from the dwelling house of the defendant under circumstances amounting to the commission of the crime of larceny thereof, and that the said moneys and property were wrongfully withheld from the defendant by divers persons, who the plaintiff then and there claimed were known to him and whose names and the whereabouts of said accused persons the plaintiff then and there unlawfully concealed from the defendant and from the magistrates then and there in the county of Cook and State of Illinois, contrary to the statute in such case made and provided, and further represented to the defendant that by reason of his knowledge, he, the plaintiff, was in a position to secure the return to the defendant of his said moneys and property so wrongfully withheld from him; and the defendant avers that the plain

tiff, not then and there standing in the relation of husband or wife, parent or child, brother or sister to the offenders or either of them, and with the intention of promoting and controlling litigation between the defendant and divers persons respecting the moneys and property aforesaid, and with the intention of obtaining from the defendant as a compensation for information to be furnished by the plaintiff and used and acted upon, on which recovery may be made of the moneys and personal property of and to the defendant or in assisting to recover said moneys and property to the defendant, thereby then and there obtained the supposed writing without any good and lawful consideration therefor, contrary to the statutes in such case made and provided and for the purposes and upon the assurances aforesaid."

The plea presented no defense to the declaration. It twice pleaded some statute and attempted to allege facts bringing the contract within the statutory prohibition. Evidently one statute is the fourth section of division 2 of the Criminal Code, concerning accessories after the fact, which provides that every person not standing in the relation of husband or wife, parent or child, brother or sister to the offender, who knows the fact that a crime has been committed and conceals it from the magistrates, shall be deemed an accessory after the fact and punished. This must be the section referred to, because the fact alleged is concealment from magistrates contrary to the statute. But the plea fails to aver that the plaintiff did not stand in either of the relations defined by the statute. The offense created by that section is concealment of a crime, and the allegation of concealment contrary to the statute was concealment from the defendant and from the magistrates of the whereabouts of accused persons, and it was also fatally defective for failure to aver that, in fact, a crime had been committed. It is an essential prerequisite to the concealment of a crime that a crime shall have been committed, at least in the absence of a pending prosecution, and a plea is bad which

fails to allege either. (Columbia Lodge v. Manning, 38 Atl. Rep. (N. J. Eq.) 444; Catlin v. Henton, 9 Wis. 476; Brittin v. Chegary, 20 N. J. L. 625; DeSteuben County Bank v. Mathewson, supra.) In relation to the other supposed statute, the plea averred that plaintiff did not stand in the relation specified in the statute concerning accessories after the fact, but it appeared from the further facts stated that the pleader had in mind the legality of a contract prohibited by sections 26 and 27 of division 1 of the Criminal Code, providing for the punishment of barratry and maintenance, or possibly referred to the common law offense of champerty. In either view, there was nothing in the plea showing any agreement of the plaintiff to bear all or any portion of the cost or expense of any litigation. The law requires that to make out a case of champerty it must be shown that the costs and expenses of the suit, or some part of them, are paid or agreed to be paid by one not a party to the suit. (Newkirk v. Cone, 18 Ill. 449; West Chicago Park Comrs. v. Coleman, 108 id. 591; Torrence v. Shedd, 112 id. 466; Phillips v. South Park Comrs. 119 id. 626; Brush v. City of Carbondale, 229 id. 144.) The plea did not even aver that the defendant believed the representation that he was the victim of a larceny.

A replication, as finally amended, to the eighth plea first took issue on a matter of inducement upon which an issue of fact could not be formed, and then alleged that the plaintiff did not unlawfully conceal from the defendant or the magistrates the whereabouts of money and personal property rightfully belonging to the defendant, and did not represent that by reason of his knowledge he was in position to secure the return of the moneys and property, and did not, with the intention of promoting and controlling litigation and with the intention of obtaining compensation for information on which a recovery might be had, obtain the execution of the contract without any good and lawful consideration, contrary to the statute. It is said that this rep

lication was double, but that was not a ground of demurrer to it. Another replication averred that the plaintiff did not agree to maintain or assist with money the prosecution of any suit or agree to pay the costs or expenses or any part thereof. It will be noticed that the replication first mentioned denied what the plea did not allege. The plea alleged that the plaintiff unlawfully concealed the names and whereabouts of the accused persons, and the replication denied that he concealed the whereabouts of the moneys, personal property and effects. The second replication denied what there was no occasion to deny, by saying that the plaintiff did not agree to pay any of the costs or expenses of any litigation,—a fact not alleged in the plea. The replications were defective for controverting matters not alleged in the plea, but the matters not denied, and therefore admitted, constituted no defense to the declaration. It was a case of defective replications to a defective plea, and a defective replication amounts to the same thing as a demurrer to the plea which it professes to answer. A demurrer to a pleading tests the sufficiency of all pleadings which precede the demurrer, and the court will not give judgment in favor of a party who is the first to commit an error. If a' motion had been made to carry the demurrer back to the plea it should have been sustained, but there was no motion, so that error cannot be assigned on the failure to carry the demurrer back, (People v. Central Union Telephone Co. 192 Ill. 307; Town of Scott v. Artman, 237 id. 394;) and there is no assignment of error on that ground. Where the facts set up in a plea constitute a defense to the cause of action alleged in the declaration and the plea remains unanswered, a judgment in bar against the plaintiff is proper. (Weiss v. Binnian, 178 Ill. 241.) The effect is the same as if an issue of fact had been made upon the plea and found for the defendant. (Ward v. Stout, 32 Ill. 399.) The plaintiff, by failing to demur to the plea and to stand by his demurrer if it should be overruled, and failing to

ask the court to carry the demurrer to his replication back to the plea, waived all formal defects in the plea, but his replication being adjudged insufficient, any defect in substance in the plea was not cured or any fact admitted which ought to have been stated in the plea to constitute a defense. As already shown, the plea was defective in matter of substance and did not allege facts which would be a defense to the cause of action set out in the declaration.

The municipal court erred in entering judgment on the plea and the Appellate Court erred in affirming the judgment. The judgments of the municipal court and Appellate Court are reversed and the cause is remanded to the municipal court.

Reversed and remanded.

THE CITY OF CHICAGO, Appellant, vs. JOHN P. AGNEW et al. Appellees.

Opinion filed June 16, 1914-Rehearing denied October 7, 1914.

1. SURETIES—what not such a violation of contract as releases surety company. The fact that the commissioner of public works did not require the contractor on tunnel work to install a compressed air plant, as required by his contract with the city, is not such a material violation of the contract as releases the surety company which signed the contractor's bond, where it does not appear from the evidence that the installation of such a plant would have cheapened or facilitated the work or that it would have been anything but an additional expense to the contractor.

2. SAME when city's payment of reserve to other persons than contractor does not release the surety. The surety company on the bond of a contractor for tunnel work is not released from liability because the city, after the contractor had defaulted, used the fifteen per cent reserve which it had retained under the contract, to pay for labor, material and supplies which it became necessary to use in pumping water and sewage from the excavation for the tunnel and preserving the work so far as it had gone.

3. SAME what is necessary in order to release surety company from liability. In order to release a surety company from liability