Opinion of the Court.

The third instruction is erroneous, because it leaves out of view the element of corrupt intent on the part of the person incited. It in no way intimates, that Mrs. Fluegel knew that what she was asked to swear to was false. The deed to her of the house and lot and the deed to Coyne of the farm were both absolute deeds upon their faces. The evidence tends to show, that her own husband concurred in the statements made to her by Coyne as to what she was to say on the witness stand. If she believed, that what she was asked to testify to was true and did not know of its alleged falsity, then she would not have been guilty of perjury, if she had sworn to it. 2 Wharton on Crim. Law, secs. 1245, 1246.

If plaintiff in error was trying to persuade Mrs. Fluegel, that certain alleged facts were true, and to swear to them because of her belief that they were true, he was not endeavoring to incite her to commit perjury even though he knew that the testimony he wanted her to give was false. It must appear, that he was urging her to give false testimony, knowing that she, as well as himself, was aware of its falsity. "Though a party, who is charged with subornation of perjury, knew that the testimony of a witness whom he called would be false, yet if he did not know that the witness would willfully testify to a fact, knowing it to be false, he can not be convicted of the crime charged." 2 Wharton on Crim. Law, sec. 1329.

An instruction, similar to the one now under consideration, was, for the reason here indicated, decided to be erroneous by the Supreme Court of Massachusetts in Commonwealth v. Douglass, 5 Metc. 241. United States v. Dennee, 3 Wood's Rep. 39; Stewart v. State, 22 Ohio St. 477.

The fifth instruction given for the People was erroneous for the same reason here urged against the third, and neither of them was cured by any instruction that was given. The fifth of defendant's refused instructions embodied the idea of guilty intent on the part of Mrs. Fluegel and should have been given.

Opinion of the Court.

As already stated, the judicial proceeding, in which the testimony of Mrs. Fluegel was to have been given, was pending in the State of Iowa. The point is made and elaborately argued by counsel for the defence, that a person in this State can not be punished in a court of this State for inciting another person, also in this State, to commit perjury in a proceeding pending in another State. It is claimed, that our statute upon this subject contemplates perjury committed in proceedings or matters pending in this State and not in a foreign jurisdiction. We do not deem it necessary to discuss this question and pass no opinion upon it.

The indictment in this case charges that perjury was a crime punishable by the laws of Iowa, and that the false swearing, which the defendant is accused of having endeavored to incite, would have constituted perjury under the laws of Iowa. It is also averred in the indictment, that the false testimony in question could have been given under the laws of Iowa, or, in other words, that Mrs. Fluegel would have been a competent witness for her husband in Iowa, though she could not have testified for him, if the proceeding above described had been pending in Illinois.

The laws of Iowa were introduced in evidence. We have examined the definition of perjury as contained in the code of that State and find it to be substantially the same as the definition given in our own statute. Therefore, if it be admitted that plaintiff in error can be punished for endeavoring to procure the commission of perjury in a suit pending in another State, the third and fifth instructions, considered with reference to the Iowa definition of perjury, as well as when considered with reference to the Illinois definition thereof, are erroneous in the respect already pointed out.

The judgment of the circuit court is reversed and the cause remanded. Judgment reversed.

Syllabus. Statement of the case.

ELISHA B. STEERE

v.

WILLIAM J. BROWNELL.

Filed at Springfield January 18, 1888.

1. LIMITATION-as to set-off-statute construed. Section 17 of the Limitation law gives a defendant the right to plead a sot-off or counter-claim barred by the statute, while held and owned by him, to any action the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter-claim was so barred, the same as if it was not so barred; and the defendant, as to such set-off, may recover judgment against the plaintiff for any balance found to be due him, the same as in other cases.

2. Se tion 17 of the Limitation law, and section 30 of the Practice act, relating to the same subject matter,-set-off,-are in pari materia, and must be taken and construed together. The purpose of section 17 is to extend the right given by section 30 to a class of cases where the right could not otherwise be exercised.

3. REMEDY by statute-draws rights incident to it. Where the legislature gives a right of action, as, to maintain assumpsit, to plead set-off, and the like, when it did not and could not otherwise exist, the presumption is that all the rights incident to the assertion and maintenance of the right so given are also Conferred.

4. CONSTRUCTION OF STATUTE-general rule. The general rule is, that the words of a statute are to be interpreted according to their common and popular acceptation and import, and in such way as to carry into effect the whole law; but words of known legal import are to be considered as having been used in that known sense, or according to their strict acceptation, unless there appears a manifest intention to use them in their common or popular sense.

5. It is not permissible for the courts to insert in a statute, words not used by the legislature. The meaning and intent of the legislature are to be ascertained from the words employed, without adding thereto or taking there from.

APPEAL from the Appellate Court for the Third District;— heard in that court on appeal from the Circuit Court of McLean county; the Hon. OWEN T. REEVES, Judge, presiding.

The plaintiff filed the common counts in assumpsit. The defendant pleaded general issue, payment, Statute of Limitations and set-off. To the plea of set-off, plaintiff, under leave,

Brief for the Appellant.

filed several replications, the third being that the defendant ought not to have his set-off, etc., except as to the sum that shall be found due on plaintiff's claim, because, he says, the several supposed causes of action in the plea of set-off mentioned, did not, nor did any of them, accrue to the defendant at any time within five years before the commencement of this suit, etc., to which replication the defendant rejoined, that the claims mentioned in defendant's plea of set-off were held and owned by the defendant at the time they became barred, and that the plaintiff's cause of action was held and owned by plaintiff before the defendant's claim was barred, etc. A demurrer was interposed to this rejoinder, and overruled, and plaintiff elected to abide by his demurrer. The cause was tried upon the issues presented by the other pleadings, and resulted in a finding for defendant, on his plea of set-off, for $342.65. A motion for a new trial was overruled, and judgment against plaintiff on verdict. On appeal to the Appellate Court for the Third District, the judgment of the circuit court was affirmed, and plaintiff below prosecutes this further appeal.

Mr. THOMAS C. KERRICK, and Mr. JOSEPH W. FIFER, for the appellant:

The right of set-off is statutory. It did not exist at common. law. 1 Chitty's Pl. (14th Am. ed.) 568.

To plead to an action is to answer the declaration in a formal manner. A set-off is something more than an answer to the action. As to the excess above the plaintiff's debt or damages, it is to all intents an action.

The counter-claim, though barred, may be used as a shield against the plaintiff's claim; but, having served the purpose of defeating that claim, it has no further vitality. The statute does not provide that the claim shall be revived. It merely provides that it may be pleaded to the action, and makes no provision, as does section 30 of the Practice act, for a recovery

over.

Opinion of the Court.

Mr. JAMES E. EWING, and Mr. JOHN E. POLLOCK, for the appellee.

Mr. JUSTICE SHOPE delivered the opinion of the Court:

But one question arises in this case which we deem it necessary to discuss. It arises on the demurrer to the rejoinder to a replication to the plea of set-off, and involves the construction of section 17, chapter 83, (Limitations,) of the Revised Statutes. The question is, whether that section of the Limitation act, in the cases therein mentioned, removes the bar of the statute from a claim pleaded as a set-off, to the extent of the entire claim so pleaded, or only so far as may be necessary to defeat the plaintiff's cause of action. That section is as follows: "A defendant may plead a set-off or counterclaim barred by the Statute of Limitations, while held and owned by him, to any action the cause of which was owned by the plaintiff or person under whom he claims before such set-off or counter-claim was so barred, and not otherwise."

It is insisted by counsel for appellant, that the provision allowing the defendant to plead his set-off or counter-claim "to any action," etc., means no more than to defeat such action; that when the defendant seeks to recover over, he is doing more than to plead to the action; that as to any excess, he is, in effect, setting up a new, independent cross-action; that the statute intends only to furnish the defendant a shield against the plaintiff's claim. The 30th section of the Practice act, giving the right of set-off, is as follows: "The defendant in any action brought upon any contract or agreement, either expressed or implied, having claims or demands against the plaintiff in such action, may plead the same or give notice thereof under the general issue, or under the plea of payment; and the same, or such part thereof as the defendant shall prove on trial, shall be set off and allowed against the plaintiff's demand, and a verdict shall be given for the balance due. And if it shall appear that the plaintiff is indebted to the defend