(dissenting). — At the time the agreement was made, an amended complaint had been filed in the case of Sprowl v. Lawrence, to which the defendants in that case had interposed a demurrer, assailing the sufficiency of the complaint, and assigning as causes of demurrer, that it appeared upon the face of the complaint that the bond therein described had not been legally executed, and was not a valid obligation, and that the complaint failed to show any legal right ‘in the plaintiff to sue on the bond in his own name. In other words, when the agreement was made, there were on file in the case of Sprowl certain pleadings, namely, an amended complaint, and a demurrer thereto, which put in issue the sufficiency of the complaint, the factum, or legal effect of the bond, and the right of the plaintiff to sue on the •same. This will be more fully understood by reference to the case of Sprowl v. Lawrence, decided at the last term. These, then, were the pleadings to which the parties in this case referred, as the pleadings which put in issue the specific questions named in the agreement. These pleadings, and the judgment to be rendered on the questions specified as arising on them, wore to be the same in both cases. It seems to me that my brothers lose sight of the fact, that the amended complaint in the case of Sprowl, and the demurrer thereto, then on file, did raise all of the questions specified in the agreement. They seem to consider that the pleadings which put in issue the sufficiency of the complaint, could not be the same pleadings as those which put in issue the factum, or legal effect of the bond, and the right of the plaintiff to sue on the same. They treat the agreement as referring to two distinct sets of pleadings — first, those which embrace the form of complaint, and the causes of demurrer thereto; and, second, those which put in issue the factum, or legal effect of the bond, and the right of the plaintiff’ to sue on the same. A reference to the grounds of demurrer assigned in the case of Sprowl, and the opinion of this court in that case, will clearly show that all the questions are presented by the same pleadings, and that these pleadings were the amended complaint and the demurrer thereto, on file *454when this agreement was made. And these, in my opinion, are the pleadings referred to in this agreement, as those which put in issue the particular questions specified. The judgment on these questions, and not on any other, is to be same in both cases.
The language of the agreement, when considered in connection with the fact that there were, when it was made, pleadings on file in the case of Sprowl, which put in issue allof the questions recited, is convincing proof, to my.mind, that these were the pleadings which the parties agreed should be the same in both cases. The entire purpose of the parties was, to make the decision which might be made in the circuit or supreme court in the.case of Sprowl, on the particular questions named in the agreement, the rule of decision on the same questions now before us. One of these questions was, the sufficiency of the amended complaint then on file in the case of Sprowl. And the only judgment which has ever been rendered upon either of the questions specified, is that this amended complaint was insufficient. The non-suit which the plaintiff in that case voluntarily took, when that decision was made, was in no sense a judgment upon either of the questions named in the agreement; and when that case was brought to this court, the judgment of affirmance here rendered was not a judgment adverse to the present plaintiffs upon any of the questions specified, except to this extent — that the affirmance of the judgment of the circuit court necessarily involved a judgment that the amended complaint was insufficient, for the reasons announced in the opinion of this court in that case. And just here it must be noticed, that in the very opinion in which this court decides one of the three questions specified against the plaintiffs, it decides the other two in their favor. And in that opinion all of the questions named in this agreement are treated by this court, and considered, and decided, as arising on the pleadings which were on file in Sprowl’s case, when the agreement was made. For, in that opinion, and upon those pleadings, we considered and decided the questions at issue between the parties in relation to the factum., or legal effect of the bond, and the right of the plaintiffs to *455sue on the same. Here, then, is a judicial ascertainment by this court that all of the questions specified were put in issue by the pleadings which were on file in Sprowl’s case, when the agreement was made. Now, what reason is there for holding that the agreement referred to any pleadings except those which were then subsisting, and which fully answered the descriptions given by the parties themselves of the pleadings which were to be the same in both cases ?
It appears from the agreement, that the plaintiffs in the present suit had, at the same term of the court at which the agreement was made, entered a nolle-prosequi as to their original complaint, and had, by leave of the court, filed an amended complaint. This amended complaint is not set out in the record; but, under the agreement, we must consider it as having been identical with the amended complaint in the case of Sprowl. In my opinion, the agreement is fully executed by the rendition of a judgment in this case, sustaining the demurrer to this amended complaint. Such a judgment would' not deprive the plaintiffs of a right to amend their complaint anew, by leave of the court. Eor these reasons, I dissent from the opinion of the majority of the court.