Mr. Justice Scholfield
delivered the opinion of the Court:
The Appellate Court held, that since there is conclusive evidence showing that, on the lltli day of September, A. D. 1873, at the time that Samuel J. Walker paid the appellee the $20,000, in satisfaction and discharge of the principal notes for which the two $15,000 notes, secured by the trust deed, were held as collateral security, Samuel J. Walker was indebted to the appellee to the further amount of nearly or quite $200,000, on a large amount of which it held no specific security, the appellee was entitled to still retain the two $15,000 notes, and trust deed securing them, as collateral security for such further indebtedness, bjr virtue of the agreement made and reduced to writing between the appellee and Samuel J. Walker, on the 7th day of July, A. D. 1869, unless the appellant has proved that at the time that Walker made such payment there was a special arrangement or agreement between said Walker and appellee, to the effect that the payment of the. principal notes, in this instance, operated as a redemption of the collateral; that there is no evidence in the record tending to prove such arrangement or agreement, and that, therefore, the Superior Court properly directed the jury to find in favor of the appellee.
The questions presented for. our consideration by the arguments before us, are: First, even assuming that the Superior Court did not misjudge as to the character and effect of the evidence, was it competent for that court to instruct the jury to find in favor of the appellee, after evidence had been in-traduced by appellee to sustain the defence; second, if it was competent to so instruct the jury, then, upon whom was the burden of proof, on the question of whether it was agreed and intended by the parties that the payment of the $20,000 notes by Walker should discharge the two $15,000 collateral notes, and release the trust deed securing them; third, if the burden was on appellant, then ivas there any evidence, proper for the consideration of the jury, tending to prove such agreement and intention.
First—Although we have said that motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, yet this relates rather to the mode of viewing the evidence, than to the time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit not only all that the testimony of the plaintiff proves, but also all that it tends to prove. (Frazer v. Howe et al. 106 Ill. 573.) But none of the technical particularity is required in making such motions, that is required in demurrers to evidence, and no judgment is rendered against the defendant on disallowing the motion. They are usually informal, and most frequently made by simply presenting to the court an instruction, to be given or refused, instructing the jury that the evidence is excluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sustained, most convenient, to present the motion at the conclusion of the plaintiff’s evidence, so as to at once terminate the trial; but we know of no reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, delaying the motion until after the introduction of defendant’s evidence could only affect the question of costs incident to the examination of the defendant’s witnesses,—and this, obviously, would appeal only to the discretion of the court, on a motion to re-tax costs, as, in case of the examination of unnecessary witnesses. In the following cases the practice seems to have been to entertain the motion after hearing the evidence of the defendant: Reed v. Inhabitants, 8 Allen, 524; Improvement and Railroad Co. v. Munson, 14 Wall. 342; Randall v. Baltimore and Ohio Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.
Second—The declaration contained the common counts, only. The plea of the Statute of Limitations affirmed, generally, that any cause of action that the plaintiff might have under those counts was barred. The replication set out specific facts constituting a cause of action, and that knowledge of such facts was concealed from appellant. This was traversed by the rejoinder. The burden was then upon the appellant to prove his plea. If a thing alleged as a fact never existed, it would seem clear that knowledge of it could not have been concealed; and so, in order to sustain his plea, it was incumbent on him to prove, first, the existence, and then the concealment, of the alleged facts. It was incumbent on appellant to thus particularly reply. (Beatty v. Nickerson, 73 Ill. 605.) And the same necessity exists for specific proof as for specific allegation. (Watt v. Kirby, 15 Ill. 200.) But apart from this, the defendant pleaded to the original declaration, that it, “together with said Berthold Lowenthal, did not undertake and promise, in manner and form, ” etc. This plea was not sworn to, and therefore could but amount to the general issue. When a nolle proseguí was entered as to Lowenthal, so much of the plea as alleged that, “together with said Berthold Lowenthal, ” became surplusage. It may be that when the amended declaration was filed, appellant might have required a new and more specific plea; but he did not do so. He neither demurred to this plea, nor asked that appellant re-plead. Three trials were had in the Superior Court, and the cause was three times passed upon by the Appeilate Court, without any objection ever being urged in either court to the sufficiency of this plea. The Appellate Court, in 11 Bradw. 620, and again in 14 Bradw. 158, expressly characterize it as the general issue. Even if we thought that characterization inaccurate, which we clo not, it is now too late to raise any question upon it. The plea sufficiently put in issue the allegations of the declaration, and imposed the burden upon appellant of proving them. If deemed obnoxious to a demurrer, appellant should have demurred to it. If deemed- inapplicable to the amended declaration, he should have moved -to strike it from the files.
Third—We said in Frazer v. Howe, supra,—and that ruling has been since approved in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, and other cases,—that the function of the judge on such a motion “is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,—i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation; the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence.” In Simmons v. Chicago and Tomah Railroad Co. supra, this language was used: “We think the more reasonable rule, which has now come to be established by the better authority, is, that when the evidence given at the trial, with all inferences that the ■jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” And this language was referred to with approval in Lake Shore and Michigan Southern Railway Co. v. O'Conner, 115 Ill. 261. In Doane v. Lockwood, 115 Ill.
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Mr. Justice Scholfield
delivered the opinion of the Court:
The Appellate Court held, that since there is conclusive evidence showing that, on the lltli day of September, A. D. 1873, at the time that Samuel J. Walker paid the appellee the $20,000, in satisfaction and discharge of the principal notes for which the two $15,000 notes, secured by the trust deed, were held as collateral security, Samuel J. Walker was indebted to the appellee to the further amount of nearly or quite $200,000, on a large amount of which it held no specific security, the appellee was entitled to still retain the two $15,000 notes, and trust deed securing them, as collateral security for such further indebtedness, bjr virtue of the agreement made and reduced to writing between the appellee and Samuel J. Walker, on the 7th day of July, A. D. 1869, unless the appellant has proved that at the time that Walker made such payment there was a special arrangement or agreement between said Walker and appellee, to the effect that the payment of the. principal notes, in this instance, operated as a redemption of the collateral; that there is no evidence in the record tending to prove such arrangement or agreement, and that, therefore, the Superior Court properly directed the jury to find in favor of the appellee.
The questions presented for. our consideration by the arguments before us, are: First, even assuming that the Superior Court did not misjudge as to the character and effect of the evidence, was it competent for that court to instruct the jury to find in favor of the appellee, after evidence had been in-traduced by appellee to sustain the defence; second, if it was competent to so instruct the jury, then, upon whom was the burden of proof, on the question of whether it was agreed and intended by the parties that the payment of the $20,000 notes by Walker should discharge the two $15,000 collateral notes, and release the trust deed securing them; third, if the burden was on appellant, then ivas there any evidence, proper for the consideration of the jury, tending to prove such agreement and intention.
First—Although we have said that motions to exclude the entire evidence from the jury, and motions to instruct the jury to find for the defendant, are in the nature of demurrers to evidence, yet this relates rather to the mode of viewing the evidence, than to the time or mode of interposing such motions. They are in the nature of demurrers to evidence, in that they admit not only all that the testimony of the plaintiff proves, but also all that it tends to prove. (Frazer v. Howe et al. 106 Ill. 573.) But none of the technical particularity is required in making such motions, that is required in demurrers to evidence, and no judgment is rendered against the defendant on disallowing the motion. They are usually informal, and most frequently made by simply presenting to the court an instruction, to be given or refused, instructing the jury that the evidence is excluded, or that they should find for the defendant, or, it may be, both. It would certainly be proper, and, where the motion can rightly be sustained, most convenient, to present the motion at the conclusion of the plaintiff’s evidence, so as to at once terminate the trial; but we know of no reason or authority why it may not be made after evidence is heard on behalf of the defendant. At most, so far as is now perceived, delaying the motion until after the introduction of defendant’s evidence could only affect the question of costs incident to the examination of the defendant’s witnesses,—and this, obviously, would appeal only to the discretion of the court, on a motion to re-tax costs, as, in case of the examination of unnecessary witnesses. In the following cases the practice seems to have been to entertain the motion after hearing the evidence of the defendant: Reed v. Inhabitants, 8 Allen, 524; Improvement and Railroad Co. v. Munson, 14 Wall. 342; Randall v. Baltimore and Ohio Railroad Co. 109 U. S. 478; Herbert v. Butler, 97 id. 318. And that practice is recommended by this court in City of Mattoon v. Fallin, 113 Ill. 249.
Second—The declaration contained the common counts, only. The plea of the Statute of Limitations affirmed, generally, that any cause of action that the plaintiff might have under those counts was barred. The replication set out specific facts constituting a cause of action, and that knowledge of such facts was concealed from appellant. This was traversed by the rejoinder. The burden was then upon the appellant to prove his plea. If a thing alleged as a fact never existed, it would seem clear that knowledge of it could not have been concealed; and so, in order to sustain his plea, it was incumbent on him to prove, first, the existence, and then the concealment, of the alleged facts. It was incumbent on appellant to thus particularly reply. (Beatty v. Nickerson, 73 Ill. 605.) And the same necessity exists for specific proof as for specific allegation. (Watt v. Kirby, 15 Ill. 200.) But apart from this, the defendant pleaded to the original declaration, that it, “together with said Berthold Lowenthal, did not undertake and promise, in manner and form, ” etc. This plea was not sworn to, and therefore could but amount to the general issue. When a nolle proseguí was entered as to Lowenthal, so much of the plea as alleged that, “together with said Berthold Lowenthal, ” became surplusage. It may be that when the amended declaration was filed, appellant might have required a new and more specific plea; but he did not do so. He neither demurred to this plea, nor asked that appellant re-plead. Three trials were had in the Superior Court, and the cause was three times passed upon by the Appeilate Court, without any objection ever being urged in either court to the sufficiency of this plea. The Appellate Court, in 11 Bradw. 620, and again in 14 Bradw. 158, expressly characterize it as the general issue. Even if we thought that characterization inaccurate, which we clo not, it is now too late to raise any question upon it. The plea sufficiently put in issue the allegations of the declaration, and imposed the burden upon appellant of proving them. If deemed obnoxious to a demurrer, appellant should have demurred to it. If deemed- inapplicable to the amended declaration, he should have moved -to strike it from the files.
Third—We said in Frazer v. Howe, supra,—and that ruling has been since approved in Simmons v. Chicago and Tomah Railroad Co. 110 Ill. 340, and other cases,—that the function of the judge on such a motion “is limited strictly to determining whether there is or is not evidence legally tending to prove the fact affirmed,—i. e., evidence from which, if credited, it may reasonably be inferred, in legal contemplation; the fact affirmed exists, laying entirely out of view the effect of all modifying or countervailing evidence.” In Simmons v. Chicago and Tomah Railroad Co. supra, this language was used: “We think the more reasonable rule, which has now come to be established by the better authority, is, that when the evidence given at the trial, with all inferences that the ■jury could justifiably draw from it, is so insufficient to support a verdict for the plaintiff, that such a verdict, if returned, must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant.” And this language was referred to with approval in Lake Shore and Michigan Southern Railway Co. v. O'Conner, 115 Ill. 261. In Doane v. Lockwood, 115 Ill. 494, it was said: “Instructing the jury to find the issues for defendant, is, in effect, the same thing as sustaining a demurrer to the evidence. In either case the court holds, that, admitting all the evidence tends to prove, it is not sufficient in law to sustain the action. ”
Since it was not intended in this case to overrule Simmons v. Chicago and Tomah Railroad Co. supra, it is apparent that “evidence tending to prove, ” means more than a-mere scintilla of evidence,- but • evidence upon which the jury could, without acting unreasonably in the eye of the law, decide in favor of the plaintiff, or the party producing it. It is not intended by this practice that the function of the jury to pass upon questions of fact is to be invaded, any more than it is intended that such function is to be invaded. by a motion to set aside a verdict, and for a new trial, upon the ground of the want of evidence to sustain the verdict. In neither case is the court- authorized to weigh the evidence and decide where the preponderance is. Hilliard on New Trials, pi 339, sec. 9, et seq.; Johnson v. Moulton, 1 Scam. 532; Lowry v. Orr, 1 Gilm. 70; Morgan v. Ryerson, 20 Ill. 343.
What, then, is the effect of the evidence? We have held that this identical contract between Samuel J. Walker and appellee, of July 7, 1869, authorized appellee to hold all col-laterals pledged for particular loans then made, for the payment of all notes held by the appellee against said Walker, regardless of the manner in which they were secured. Buchanan v. International Bank, 78 Ill. 500; Walker et al. v. Abt et al. 83 id. 226.
If this contract was subsequently cancelled, it devolved' upon appellant to prove it. It is not pretended that there is any evidence in that respect. When Walker made payment of the $20,000 notes on the 11th day of September, A. D. 1873, he did not take up . the two $15,000 collateral notes, and trust deed securing them. They are produced by the appellee, uncancelled, and if there was any agreement between Walker and appellee that by paying the $20,000 these two $15,000 notes were also to be cancelled and the trust deed released, it devolved upon appellant to prove it. There is absolutely no proof to this effect in the record. What Walker may have intended in this respect, is, obviously, unimportant, in the absence of proof showing that such intention was shared by appellee. An attempt was made to use a deposition of Lowenthal, taken in a case between appellee and another party, as original evidence in this case. Without conceding that it would have afforded material proof on 'the question we are considering here, if admissible as original evidence, we content ourselves with saying that Lowenthal is not a party to this suit, and that therefore his statements in a deposition in another suit could only be admissible in this suit for the purpose of contradicting him—a sufficient foundation having first been laid for that purpose. It can not be used as original affirmative evidence in this case, and this is so apparent that it can need no discussion. Walker is the only other person whose testimony was taken, who could have had any knowledge of such an agreement, if made, and his testimony proves nothing in that respect. Mere suspicions or conjectures are inadequate to sustain a legal judgment.
We concur with the reasoning of the Appellate Court, and affirm its judgment.
Judgment affirmed.
Mr. Chief Justice Scott, dissenting.