ance, was such a fraud upon appellant as in equity should release him from his contract to look after and manage the property for $200 per year, and that he should, upon an accounting, be allowed what his services were reasonably worth. The nature of the so-called partnership agreement and the prayer of appellant's original bill, filed in 1900, are 'set out fully and accurately in the statement that precedes this opinion. It is admitted here, as it was in appellant's original bill, that he was informed that his father had conveyed the Opera House block and the Post-office block in December, 1887. It will be borne in mind that the case at bar was commenced by appellees for a dissolution of the partnership and for a general accounting against appellant February 27, 1890, and remained on the docket of the circuit court until March 6, 1899, when it was dismissed. It remained off the docket and out of court until December 7, 1903, when it was re-instated on a mandate from the Appellate Court for the Second District, and on that day, by an amended answer and cross-bill, appellant for the first time in this suit brought to the attention of the court the same grounds for equitable relief which formed the basis of his original suit commenced January 29, 1900.

As throwing some light upon the history of the controversy between these parties, it may be mentioned that on January 24, 1889, appellant filed a bill in the circuit court of Stephenson county to set aside the deed made by his father to appellees, and also to annul the codicil to the will of Thompson Wilcoxon and to set aside the probate thereof. This case was finally determined in this court, resulting in a judgment sustaining both the deed and the codicil to the will, November 9, 1896. (See Wilcoxon v. Wilcoxon, 165 Ill. 454.) While the parties were engaged in litigating the question of the validity of the deed and codicil the present suit was not brought to a hearing, but was continued from time to time by the circuit court. After the final disposition of the bill to set aside the deed and codicil, appel

lant, on August 17, 1897, filed his first answer in the case at bar. No cross-bill was filed by appellant at that time, nor did he by his answer claim any interest in the freehold nor allege any fraud against appellees, although he had, by his own admission, full knowledge of all the facts upon which he now relies, since December, 1887. After some other unimportant steps were taken in this case, appellees, on March 6, 1899, voluntarily dismissed their bill, over the objections of the appellant. This case was then apparently abandoned by all of the parties and appellant turned his attention to his original bill, filed January 29, 1900. It was in this original bill of 1900 that the appellant first sought equitable relief on the theory that the conveyance to his partners by his father was in fraud of his rights as a partner, and that the title should be held to inure to him to the extent of his interest in the partnership. After a rehearing was denied in this court in appellant's suit of 1900 and he had been defeated on the ground of laches, this cause being re-instated under a mandate from the Appellate Court in December, 1903, appellant filed his answer and cross-bill in the case at bar, setting out the same grounds of equitable relief relied on in his original suit of 1900.

Much of appellant's brief is devoted to a discussion of the question whether the suit of 1900 is a bar to the relief appellant seeks in this case. We do not deem it necessary to examine into and determine whether all of the elements of an estoppel by judgment are present here. It seems clear that there is an identity of the subject matter of the suit and of the parties thereto, and that the thing decided is the same matter which the appellant is insisting on against the same parties in the present action. It is true that in the case at bar appellees, by their original bill, prayed for an accounting and a dissolution of the partnership, but appellees had long since voluntarily abandoned their original bill and dismissed the same out of court, and only came back when compelled to do so by the judgment of the Appellate

Court. Appellees are not insisting on any accounting or other relief against appellant, and they are only in court for the purpose of resisting appellant's alleged cause of action against them. There is therefore no substantial difference, so far as the live questions between the parties are concerned, in this case and the suit of 1900. Independently of the question as to whether the judgment in the suit of 1900 can be set up as a bar or estoppel against the same claim or cause of action in this suit, there is no question that the former judgment is an estoppel as to those matters in issue or points controverted upon the determination of which the decree was rendered. Cromwell v. County of Sac, 94 U. S. 351; Equitable Trust Co. v. Fisher, 106 Ill. 189; Riverside Co. v. Townsend, 120 id. 9; Stone v. Salisbury, 209 id. 56.

In the suit of 1900 between these parties the appellant's right to equitable relief on the ground relied on in his bill then and in his answer and cross-bill now was held barred by his laches. It was also determined in that case that the pendency of this suit did not excuse his delay, for the reason that up to the time of the rendition of the decision in that case appellant had not interposed any pleading under which the relief sought by his bill of 1900 could have been obtained. This appears fully from the opinion of this court in Wilcoxon v. Wilcoxon, 199 Ill. 244, and the whole matter is fully brought before the court by the supplemental bill filed by appellees in this case.

If argument were required to show that appellant had not raised the issue as to the inuring of the title under his father's deed to appellees to him, we would call attention to the fact that appellant sued out a writ of error from the Appellate Court and took this case there to have the order of dismissal reviewed. If the issue now involved as to appellant's interest in the freehold had been in the case then, the Appellate Court would have had no jurisdiction. After the reversal by the Appellate Court appellant then presented

issues by his pleadings involving a freehold, and hence the present appeal is properly brought to this court. There was no such question in this case until December, 1903.

We therefore find that appellant took no steps, by way of cross-bill or otherwise, to obtain relief on the theory that he was, in equity, one-fourth owner in these premises, or that appellees had been guilty of a fraud in concealing from him the existence of the deed, notwithstanding full information of these facts came to him on the 27th day of December, 1887. Leaving out of view for the time being the litigation under the bill of 1900, we thus see that we have a period of about fifteen years after appellant discovered his rights before he took any action for equitable relief. There is no difference in the application of the equitable doctrine of laches whether it is interposed against relief sought by an original bill or by cross-bill. The equitable doctrine against the enforcement of stale claims is not a rule of pleading. It is one of the fixed doctrines of courts of equity that nothing can call forth this court into activity but conscience, good faith and reasonable diligence, and the absence of any of these elements is equally fatal to a recovery whether they appear in a cross-bill or in an original bill. A cross-bill, when filed to obtain affirmative relief, like an original bill, should set forth equitable grounds of relief and show a state of facts upon which a court of equity could be called upon to act if the same grounds were presented in an original bill. (Gage v. Mayer, 117 Ill. 632; Story's Eq. Pl.-10th ed.-sec. 628.) There is no excuse offered by appellant which in equity can relieve him from the imputation of laches in this case that has not already been adjudged insufficient by this court in the former case. We regard his situation even worse now than it was when this matter was before us on the former occasion.

Without deciding whether appellant is barred under the doctrine of res judicata by virtue of the former decree, we hold that appellant's delay in bringing to the attention of

the court the grounds relied on for equitable relief in his answer and cross-bill in this case is a bar to his right of recovery.

The decree of the circuit court will be affirmed.

Decree affirmed.

HAND, C.J., CARTWRIGHT and Scorr, JJ., dissenting.

THE CHICAGO TERMINAL TRANSFER RAILROAD COMPANY

V.

JAMES REDDICK, Admr.

Opinion filed October 23, 1907-Rehearing denied Dec. 5, 1907.

RAILROADS when foreman of switching crew is not a fellowservant of switchman-ncgligence. The foreman of a switching crew who knows that the track onto which he is about to shunt some cars has been recently occupied by other cars, although he knows another crew has been ordered to remove them, is not a fellow-servant of his switchman in signaling the engineer to back the cars and in ordering the switchman to cut off the cars to be shunted, and it is negligence for him to give such orders before ascertaining whether the track is clear.

APPEAL from the Branch Appellate Court for the First District;-heard in that court on appeal from the Superior Court of Cook county; the Hon. THEODORE BRENTANO, Judge, presiding.

JESSE B. BARTON, for appellant.

JAMES C. MCSHANE, for appellee.

Mr. CHIEF JUSTICE HAND delivered the opinion of the

court:

This was an action on the case commenced by the appellee in the superior court of Cook county, against the appellant, to recover damages for the death of his intestate,