German American Savings Bank vs. Fritz, imp. ment debtors for the purpose of enforcing contribution by the latter." Secs. 3021-3024, R. S. These statutes assume the continuance of the lien at law for at least twenty days after payment, without anything being done, and then provide a way for preserving such a lien at law by simply filing an affidavit. But such remedy is accumulative, and does not take away the right which previously existed of enforcing the same as between the parties by apt proceedings in equity. McDaniel v. Lee, 37 Mo. 206. It was there said, in effect, that prior to the statute in that state a surety who had paid the debt had a remedy against his co-sureties either by bill in equity to enforce contribution against all, or he might proceed against each separately at law for his proportionate share of the excess paid; and since the statute he also had a summary remedy by motion for judgment for such proportionate share of the excess. It being thus established that in equity a defendant surety, on payment of the original judgment, is subrogated to the rights of the judgment creditor, especially where, upon making such payment, an assignment of the judgment is taken to keep alive the security as here, it only becomes necessary to consider whether the proper remedy has been resorted to in the case at bar. Ordinarily, to secure the benefit of such judgment lien against such co-surety or coaccommodation indorser, the one paying the amount of the judgment should proceed by bill, suit, petition, or some proceeding in equity, wherein the equitable rights of the respective parties may be adjudicated and enforced. Cuyler v. Ensworth, 6 Paige, 32; Speiglemyer v. Crawford, 6 Paige, 254; Goodyear v. Watson, 14 Barb. 481; Townsend v. Whitney, 75 N. Y. 425; Smith v. Rumsey, 33 Mich. 183; Neal v. Nash, 23 Ohio St. 483; Furnold v. Bank of State, 44 Mo. 336; Lidderdale's Ex'rs v. Robinson's Ex'rs, 12 Wheat. 594. But such relief has been granted by order of the court upon hearing of the parties. Springer's Adm'rs v. Springer, 43 German American Savings Bank vs. Fritz, imp. Pa. St. 518. Thus, in McDaniel v. Lee, 37 Mo. 206, the non-paying joint debtors sought relief upon petition in a court of equity, and it was held, in effect, that although the proceedings were irregular yet, as the court had thereby acquired jurisdiction over the subject matter, it would retain it and do full justice between the parties by enforcing contribution according to their equitable rights. So here, August 15, 1885, Fritz invoked the equitable powers of the court to relieve him from the judgment by fully satisfying and discharging the same. Blankenburg resisted the motion, and after a full investigation and hearing the court found the facts as stated, and ordered, in effect, the judg ment released as to one half as against Fritz, but binding against him and in favor of Blankenburg for the payment of the other half by way of contribution. Not satisfied with such order, which seems to have been in strict accordance with the equitable rights of the parties, Fritz, upon new affidavits, renewed, substantially, the same application, and, after full hearing upon the merits, that motion was denied, November 17, 1885, as stated. No appeal was taken from either of those orders, and both, and the affidavits upon which they were respectively based, appear in the record. The original and alias executions, which were each subsequently issued upon leave granted by the court, recited the orders as stated. The motion to set aside the alias execution and proceedings under it, was, in effect, to renew, open, and reconsider what was thus twice before solemnly determined, and, as we think, was properly denied. Fritz, having thus had a full hearing in a proceeding equitable in its nature and apparently just, must be regarded as concluded. By the Court. The order of the circuit court is affirmed. McFarland vs. The State. MCFARLAND, Plaintiff in error, vs. THE STATE, Defendant in error. February 8- March 1, 1887. Criminal law and practice: Former conviction procured by fraud: Plea of former conviction not an admission of guilt. 1. Where a person liable to be charged criminally, by fraud procures himself to be convicted of the offense, such conviction is no bar to another prosecution, except, perhaps, where the full penalty of the law has been imposed and suffered. 2. A defendant pleaded not guilty, also a former conviction. A trial of the issue formed on the latter plea resulted in a verdict that the former conviction was procured by fraud and collusion and was no bar to the prosecution. Held, that a conviction could not follow from such verdict, without a trial upon the issue made by the plea of not guilty. ERROR to the Circuit Court for Dane County. The plaintiff in error, William A. McFarland, was prosecuted before a justice of the peace at Deerfield in Dane county, for selling liquor without license. One Nelson appeared as his attorney. For some reason this prosecution was discontinued. On the day it was so terminated, the chairman of the board of supervisors of the town in which the offense is alleged to have been committed came to Madison and renewed the prosecution in the municipal court, by making due complaint against McFarland for the same offense. On the same day, McFarland and Nelson and one Monson went before one Allen, a justice of said county at Cambridge, and there Monson, at the request of Nelson, made complaint against McFarland for the same offense. A warrant was issued, and McFarland was arrested by a constable and brought before the justice. He pleaded guilty to the charge in the complaint, and the justice fined him $10 and costs, which he paid and was discharged from custody. McFarland vs. The State. He was subsequently arrested on a warrant issued by the municipal court upon the complaint of the chairman, was arraigned in that court, pleaded not guilty, and was tried and convicted of the offense charged. He thereupon appealed to the circuit court. When the cause was called for trial in that court, he was permitted to plead his conviction before Justice Allen for the same offense in bar of the prosecution. The district attorney, on behalf of the state, replied that such conviction was procured by the fraud and collusion of the accused. The issue thus made on the special plea was tried before a jury, who rendered a verdict thereon for the state as follows: "We, the undersigned jury, impaneled to try the issue in this case made upon the complaint, plea, and replication, find that the former prosecution and conviction pleaded in bar was had, but that it was procured by fraud and collusion upon the part of the defendant and is no bar to this prosecution. We therefore find the defendant guilty." There was no trial of the issue made by the plea of not guilty. That plea was not withdrawn when the special plea was interposed. The court held that judgment of conviction must go against the accused on the above verdict, on the ground that the special plea was a conclusive admission of his guilt. Thereupon motions in arrest of judgment and for a new trial were overruled by the court, and the accused was adjudged to pay a fine of $10 and costs. He has sued out a writ of error from this court to obtain a review and reversal of such judgment. For the plaintiff in error there was a brief by Hall & Rogers, and oral argument by Mr. Rogers. To the point that the court erred in refusing to submit to the jury the question of defendant's guilt on the merits, they cited 1 Wharton's Crim. Law, secs. 530a, 568, 572; Comm. v. Goddard, 13 Mass. 455; Comm. v. Robinson, 126 id. 259; Hirn v. State, 1 Ohio St. 16; Barge v. Comm. 3 Pen. & W. 262; VOL. 68-26 McFarland vs. The State. Foster v. Comm. 8 Watts & Serg. 77; Solliday v. Comm. 28 Pa. St. 13; Nonemaker v. State, 34 Ala. 211. State v. Epps, And the rule The Attorney General, for the defendant in error, argued, inter alia, that at common law a special plea in bar, either of "autrefois convict” or “autrefois acquit," was final and judgment was passed upon the determination of the plea. This rule was relaxed in the case of felonies but is still held in England in case of misdemeanors. King v. Taylor, 3 B. & C. 502; King v. Gibson, 8 East, 107. This rule seems to have been followed in several of the states. 4 Sneed, 552; State v. Green, 16 Iowa, 240. has been frequently applied upon a plea of abatement where issue of fact is joined. Comm. v. Carr, 114 Mass. 280; Guess v. State, 6 Ark. 147. The rule seems to be that the defendant in a misdemeanor can have but one trial upon a question of fact, and that if he pleads a false special plea, final judgment goes against him. State v. Allen, 1 Ala. 442. If the distinction of the special plea being overruled as a matter of law upon demurrer, and the trial of a false plea as an issue of fact, is kept in view, it will serve to reconcile most of the authorities otherwise seeming to conflict. See Barge v. Comm. 3 Pen. & W. 262. LYON, J. 1. It is a rule of the common law, founded on a plain principle of natural justice, that no person shall be twice put in jeopardy of punishment for the same offense. This rule is embodied and perpetuated in both the federal and state constitutions. One application of the rule is that a regular conviction or acquittal upon a prosecution for a crime, if pleaded, is a bar to a second prosecution for the same offense. But if one liable to be charged criminally, by fraud procures himself to be acquitted or convicted of the offense, such acquittal or conviction is no bar to another prosecution therefor. Whart. Crim. Pl. § 451. Bishop, in his |