Opinion on Eeheaeing,
Pee Curiam:.On petition for rehearing the counsel of the appellee— citing two cases, Fisher v. Greene, 95 Ill. 97, and Fielding v. Fitzgerald, 130 Ill. 441, to the effect that a party may not, on the eve of, or after a trial, present new issues— asserts, with emphasis, that “either those decisions are wrong, or this court is wrong.” This assertion is made in forgetfulness of the familiar rule that the matter contained in one plea is utterly without effect, not to be looked at, upon an issue of law or fact arising upon another part of the pleadings, which are not in continuation of the line of pleading in which the first plea is.
There has been, so far as we are advised, but one occasion in this State (Farnam v. Childs, 66 Ill. 544) to refer to that rule, but it is often repeated elsewhere. The authorities down to thirty years ago are pretty well collected in note to Jackson v. Stetson, 15 Hass. 48.
The plea of set-off by the defendants below did not change their right to make, under the general issue, any proof that would have been admissible if no set-off had been pleaded.
As to whether any portion of the depositions excluded by the court should be admitted upon another trial must be determined by the issues then made and the course the trial then takes.
To the opinion before expressed, that the depositions as a whole should not have been excluded, we adhere.
Petition for rehearing denied.