¶1delivered the opinion of the Court.
¶2This case, under the same title, has been in this court and in the Supreme Court heretofore. 33 Ill. App. 471; 133 Ill. 332.
¶3When the case returned to the Superior Court the parties made a stipulation that the “ cause ” should “ be submitted to and heard by his honor Judge Stein.” Thereafter a new replication, with pleadings subsequent thereto, was filed, and the appellants then demanded a trial by jury. Being refused, they excepted. In this was no error. Here the “ cause,” and not the cause upon “ issues joined,” was submitted. Gage v. Com. Nat. Bank, 86 Ill. 371; Heacock v. Lubukee, 108 Ill. 641.
¶4The new replication was an amplification of the previous one, the substance of which is stated in 133 Ill. 333-4; and upon rejoinders and surrejoinders, the parties got to a basket full of issues of fact.
¶5The validity of the first replication was not passed upon by the Supreme Court.
¶6Several issues of fact are also joined upon pleadings following that replication.
¶7One of the rejoinders to the new replication was that the agreement in that replication stated was made more than five years before that replication was filed.
¶8To that rejoinder a demurrer was rightly sustained. This action of trespass is not grounded upon any right acquired by that agreement. The appellee had possession—the appellants took it from him, and must justify.
¶9The agreement, if valid, only destroys the justification. And the validity of ■ the agreement is not now in question. That could be tested only by demurrers to the replications, and abiding by the decisions on the demurrers. By pleading over—rejoining—all questions of law upon the replications are waived. Beer v. Philips, Breese, 44, is in point.
¶10Ives is the sole appellee—was the sole plaintiff below. For whose use he sues—what he shall do with the proceeds —pay all to one, or divide them up—does not concern the appellants. The usees are not parties to the suit. They are the several plaintiffs in the writs held by Ives, the constable. Tedrick v. Wells, 152 Ill. 214.
¶11The averment that the suit was for their use was not traversable. Boone v. Stone, 3 Gilm. 537.
¶12Upon the conflicting evidence, the finding of the court is final.
¶13There is no error, and the judgment is affirmed.