text:
    Altja R. Heeren v. William Kitson et al.

      Fraudulent. Conveyances — Bill to Set Aside — Father and Son — Wages —Express Contract — Preference between Creditors — Amendment—See. 57, Chap. 22, R. S. — Sworn Answers.
    1. Upon a bill to set aside an alleged fraudulent deed and a mortgage executed from a father to his son, it is held: That the father, being lawfully indebted to his son, might pay him in preference to other creditors; and that, while the testimony creates strong suspicion against the good faith of the transaction, it does not overcome the sworn answers.
    2. In this State bills, answers and replications may be amended, at any stage of the proceedings, on such terms as the court may impose.
    8. Where the bill of complaint against two defendants calls for answers under oath, each answer must be overcome by at least two witnesses, or what is equivalent to the testimony of two witnesses.
    [Opinion filed December 8, 1888.]
    Appeal from.the County Court of Dock Island County; the lion. John J. Glenn, Judge, presiding.
    Messrs. Johnston & Johnston, for appellant.
    Fraud is rarely perpetrated openly and in broad daylight-The proof is very seldom perfect and direct, but is dependent upon very many little circumstances and conclusions to bo drawn from the general aspect of the case. A resort to presumptive evidence becomes absolutely necessary to protect the rights of honest men from this as from other invasions. Again, it is said that direct evidence of witnesses speaking of their own knowledge of fraudulent intent, is not required. It is sufficient to prove facts and circumstances strong enough to justify a jury in finding such an intent. And, again, nor is clear and indisputable evidence required to establish fraud. Newman v. Cordell, 43 Barb. (N. Y.) 448 and 461; Kaine v. Weigley, 22 Pa. St. 183; Babcock v. Eckler, 24 N. Y. 632; Gill v. Crosby, 63 Ill. 190; Bowden v. Bowden, 75 Ill. 143; Carter v. Gunnels, 67 Ill. 270.
    In Wait on Fraudulent Conveyances and Creditor’s Bills, section 241, page 332, the author gathers a few of the indicia or badges of fraud, of which we believe the following to be present in this case:

      First. The absence of memoranda or of any record of the consideration. Hubbard v. Allen, 59 Ala. 300.

      Second. Ho agreement as to the exact terms of settlement. Lawson v. Funk, 108 Ill. 502.

      Third. A false admission of the receipt of the consideration. Baltimore & Ohio R. R. Co. v. Hoge, 34 Pa. St. 214.

      Fourth. Unusual clauses in the instrument. In this case the reservation of the right of homestead -was made simply' and solely to harass, hinder and delay the complainant. Pilling v. Otis, 13 Wis. 496.

      Fifth. A sale not conducted in the usual and ordinary course of business. State ex rel. Pierce v. Merritt, 70 Mo. 283.

      Sixth. Conduct of the parties which is exceptional and peculiar. The only cases ever heard of where parties have conducted themselves as these parties are shown to have done, claiming what these parties claim, are those cases similar to this where such a claim as this is invented, and set up as a consideration for a deed made to hinder, delay and defraud creditors. And in every similar case the court has placed such a construction upon it. Haney et al. v. Nugent et al., 13 Wis. 290; Gardinier v. Otis et al., 13 Wis. 460; Brinks v. Heise, 84 Pa. St. 253; Lawson v. Funk, 108 Ill. 502; Marshall v. Green, Ex'r, 24 Ark. 419; Glenn v. Glenn, 17 Iowa, 498.

      Seventh. Absence of authentic evidence of indebtedness considerable in amount. There was here no such evidence. Newman v. Cordell, 43 Barb. (N. Y.) 461; Embury v. Klemm, 30 N. J. 523; Brinks v. Heise, 84 Pa. St. 253.

      Eighth. Contradictory and irreconcilable accounts of the transaction given by vendor and vendee. Haney v. Nugent, 13 Wis. 290; Marshall v. Green, 24 Ark. 419.

      Ninth. Absence of means in the vendee. Stevens v. Dillman, 86 Ill. 233; Embury v. Klemm, 30 N. J. Eq. 523.

      Tenth. Absence of the evidence supposed to be within reach of the party charged with the fraudulent act. Henderson v. Henderson, 55 Mo. 559.
    Eleventh„ Neglect to testify.
    In this case, William Kitson, one of the defendants, although present at the hearing, and although his evidence might have served to explain and make clear many of the inconsistencies in their defense, neglects to testify; and the language of the court in Bowden v. Johnson, 107 U. S. 262, seems to apply with great force. “ The omission of J ohnson to testify as a witness for himself, in reply to the evidence against him, is of great weight.” Henderson v. Henderson, 55 Mo. 559; Bump on Fraud. Con., page 95; Goshorn’s Ex'r v. Snodgrass et al., 17 W. Va. 770; Glenn v. Glenn et al., 17 Iowa, 498.

      Twelfth. 'Relationship of the parties when the transfer covers the debtor’s entire estate and other badges accompany it.
    It is true that the mere fact of relationship will not of itself defeat a conveyance otherwise made in good faith, but where a transaction is so surrounded and marked with suspicious circumstances and badges of fraud as this one is, then the close relationship of the parties and the mutual dependency and desire to favor and protect each other, which must exist of very necessity, becomes the strongest badge of all. And the authorities are substantially in accord as to this fact Reiger v. Davis, 67 N. C. 189; Embury v. Klemm, 30 N. J. Eq. 523; Demarest v. Terhune, 18 N. J. Eq. 49; Haney v. Nugent et al., 13 Wis. 290; Lawson et al. v. Funk et al., 108 Ill. 502; Glenn v. Glenn, 17 Iowa, 498.
    Messrs. Sweeney & Walkek, for appellee.
    It is asserted on behalf of the appellant, that it is not necessary that there be “ clear and indisputable evidence to establish fraud.” This, however, is not, we think, an accurate statement of the law. It is true that the evidence need not be indisputable in the sense that it must be irresistible, yet it must be very clear and satisfactory, and sufficient to produce a conviction. Bump on Fraudulent Conveyances, 603; Schroeder v. Walsh, 120 Ill. 403-409.
    The cases cited by counsel, from this State, only go to this extent. Mr. Bump, in his work on Fraudulent Conveyances, on page 603, says: “While the law abhors fraud, it is unwilling to impute it on slight or trivial evidence, and thereby cast an unjust reproach upon the character of the parties. 44 Ill. 218. Such an imputation is gravé in its character, and it can only be sustained on satisfactory proof.” And, after discussing the questions further, says the testis “its sufficiency to satisfy the mind and conscience, and produce a satisfactory conviction or belief. 67 Ill. 270. The proof, however, must be satisfactory. It must be so strong'and cogent as to satisfy a man of sound judgment of the truth of the allegation. It need not possess such a degree of force as to be irresistible, but there must be evidence of tangible facts, from which a legitimate inference of a fraudulent intent may be drawn. * * * As an allegation of fraud is against the presumption of honesty, it requires stronger proof than if no presumption existed.”
    In the case of Schroeder v. Walsh, supra, our Supreme Court quotes this.language, and on page 409 say: “This court has frequently held that the evidence must be clear and satisfactory to establish fraud.”
    Counsel do not pretend to claim that such a contract is void. They admit it to be valid if made, but claim the relationship, etc., stamp it as a fraud. On the contrary, we insist that the fact of relationship does not, under the proof here, have any bearing upon the contract. Nelson v. Smith, 28 Ill. 495; Schroeder v. Walsh, 120 Ill. 411.
    Our Supreme Court, in the case of Freeman v. Freeman, 65 Ill. 106, went much further than in the present case and allowed a son to recover for work done for his father for several years after he became of age, under an implied contract.
    The case of Ginders v. Ginders, 21 Ill. App. 522, decided by this court, sustains the contract in question here. In the case of Hayden v. Henderson, 21 Ill. App. 299, the court likewise sustained a recovery upon an implied contract.
    The law always presumes persons are honest, and when the circumstances proven can exist consistently with an honest intent, then the transaction must be upheld. Mey v. Gulliman, Adm’x, 105 Ill. 285; Schroeder v. Walsh, 120 Ill. 410; Cornell v. Gibson (Ind.), 16 N. E. Rep. 131; Jackson v. Badger (N. Y.), 16 N. E. Rep. 208.
   C. B. Smith, J.

This was a bill filed by Altja R. Heeren against William and John F. Kitson and S. B. Stoddard for the purpose of setting aside an alleged fraudulent deed made by William Kitson and his wife to their son, John F. Kitson, and also to set aside a mortgage by the Kitsons to Stoddard on the same date of the deed and which was also alleged to be fraudulent.

On February 12, 1886, complainant recovered a judgment against William Kitson and one C. M. Moody for 8980 and costs in the Circuit Court of Rock Island county. An execution was duly issued on this judgment and placed in the hands of the sheriff, but nothing was made, and nothing found in the hands of the judgment debtors out of which to make the judgment or any part of it. The insolvency of Moody is admitted.

The bill alleges that prior to the rendition of the said judgment, William Kitson was the owner in fee simple of the south half of the southeast quarter of section 15 and the northwest quarter of northeast quarter of section 22, town 18 north, range 2 east, in Rock Island county, and it further alleges that prior to the rendition of the judgment, hut after the indebtedness on which judgment was rendered had accrued, viz., on the 13th day of February, 1885, the said William Kitson made a pretended deed in fee simple for said premises to John F. Kit-son for the expressed consideration of §2,400, and that in said deed William Kitson reserved his homestead interest. The bill charges that this deed was a mere sham and fraudulent, and made for the purpose of preventing complainant from making her judgment out of the land, and charges that there was in fact no consideration for such conveyance from the son to his father, and charges that John F. Kitson was a man of no pecuniary responsibility and possessed of little or no property other than the land so fraudulently conveyed to him by his father, and charges that William Kitson has no property in his name out of which the judgment can be made; that payment of the execution has been demanded by the sheriff and refused by William Kitson and that he pretends he has no property.

The allegation that the mortgage was fraudulent was abandoned on the trial by the complainant. The oath of defendants to the bill was not waived, and, in addition to a general answer, the defendants were required to answer the following interrogatories, viz.:

1st. Whether the sum named as a consideration in said deed, dated February 13, 1885, was actually paid by said John F. Kitson to said William Kitson?

2d. If any part of said sum was paid, what part, in what way, in what amounts, and when was it paid ?

3d. How, Avhen and from what sources the said John F. Kitson obtained the money paid on said deed, if any was paid ?

4th. The true purpose and intent of said deed and conveyance of said real estate from said William Kitson to said John F. Kitson ?

5th. How much money, if any, Avas actually paid by the said Simeon B. Stoddard to the said William Kitson for the said mortgage?

6th. The true purpose and intent of the said mortgage ?

The bill prayed that the deed and mortgage be set aside as fraudulent.

The defendants, John F. and William Kitson, deny specifically every fraudulent allegation in the bill, and allege that on the 13th day of February, 1885, William Batson was indebted to John F. Kitson in the sum of §2,400 for services rendered before that time at his request, and that to satisfy that debt, and in the further consideration that John F. Kitson would pay off the §500 mortgage due to Stoddard on said land, the deed was made to said John F. Kitson, and not for any other consideration whatever, and that said deed was a real, actual and bona fide conveyance of said land, and was not made by defendants or either of them with intent to defraud complainant or any other creditor of complainant. The answer also states that John F. Kitson in fact paid said mortgage and released it from the land and gave his own note instead thereof, and to secure it gave another mortgage on the same land signed by himself, his father and May Kitson.

In addition to the foregoing answer John F. and William Kitson each for himself made answer to the interrogatories a¿ follows:

“As to said first interrogatory: that said sum named as the consideration in said deed, dated February 13, A. D. 1SS5, was actually paid by this defendant, John F. Kitson, to said Wm. Kitson in services and labor before that time rendered by the said John F. Kitson for the said William Kitson at his request.
“ As to said second interrogatory: that all of said sum was paid as stated in our answer to first interrogatory, in the manner and at the time therein stated, and previous to the delivery7 of said deed.
“As to said third interrogatory: that the said John F. Kitson obtained said money by means of his own personal efforts and labor performed, laid out and expended by him as laborer and manager of the farm of the said William Kitson, upon and in connection writh the land in said bill described.
“ As to the fourth interrogatory : that the true purpose and intent of said deed was to pay a bona fide debt which this defendant, William Kitson, thus owed to this defendant, John F. Kitson, and was not given for any other or different purpose or intent.
“As to said fifth interrogatory: that the said defendant, Simeon B. Stoddard, on or about the 13th day of February, 1878, paid to the said William Kitson the sum of $700 in cash, as the sole and only consideration for the note and mortgage given of that date, which was duly recorded in the recorder’s office of said Bock Island county, in Book 27 of Mortgages, on page 127, and that the mortgage referred to in said interrogatories was given for the purpose of paying or discharging $500, the same being the balance due on said first-mentioned mortgage; and that said first mortgage was never paid in any other or different manner, except $200 of the principal thereof, which was paid by this defendant, William Kitson, on February 15, 1882.
“ As to the said sixth interrogatory : that the true intent and purpose of said mortgage referred to in said interrogatory was to pay and discharge said balance of $500 remaining due to said defendant, Stoddard, upon said first mortgage and to procure the surrender to this defendant, William Kitson, of his said note secured by said first mortgage and dated February 13, 1878, and to procure for this defendant, John F. Kitson, an extension of the time of payment of said $500, a part of the money loaned by said Simeon B. Stoddard on the date of the said first mortgage, which this defendant, John F. Kitson, assumed as a part of the consideration for the conveyance of said land to him by the said William Kitson.
“And these defendants, further answering, say: that said complainant is not entitled to the appointment of a receiver as prayed for in said bill.
“ And these defendants, further answering, deny that the complainant is entitled to the relief, or any part thereof, in the said bill of complaint demanded, and pray the same advantage of this answer as if they had pleaded or demurred to the said bill of complaint, and that they may be dismissed with their reasonable costs and charges, in this behalf most wrongfully sustained.
“William Kitson,
“John F. Kitson.”

The answer and the answer to the interrogatories were sworn to. Exceptions were filed to the answer and sustained. Complainant amended her bill, and defendants were required to answer the amended bill and also to amend their answer.

The amended answer of the Kitsons set up that John F. Kitson became of age on the 27tli of February, 1875, and that the father was sixty-tliree years of age at that time, and in feeble health and unable to work on or manage his farm; that John was his only son, and that he then proposed to go and work for himself; that it was then agreed between the father and son that, if the son would stay at home and work and manage the farm, he should be paid as much for his work as any other man would give him, and that he would pay him §20 per month for his work from the time he became of age, and that thereupon John accepted sncli proposition and continued so to work for his father and manage the farm, until the 13tli day of February, 1885, the date of the execution and delivery of the deed, and that said William Kitson never paid his son any portion of the amount he so agreed to pay him for his services, except enough to clothe him and occasionally a dollar or less, at infrequent times, for his spending money, not exceeding $30 per year, and that, at the date of said deed, there was then actually due John F. Kitson from his father under the terms of the contract the sum of $2,190.

Implications were filed to the answer and the cause referred to the master, who took the evidence and reported it back-Upon the hearing the Circuit Court found both the deed from William Kitson to John F. Kitson, and the mortgage from the Kitsons to Stoddard valid instruments and free from fraud, and dismissed the bill.

We have carefully studied the evidence in this record and can not say that the court erred in finding as it did. The complainant saw fit to call for answers under oath, and thus gave the defendants the advantage of two sworn answers which must each be overcome by at least two witnesses, or what is equivalent to the testimony of two witnesses.

While the testimony on behalf of the complainant creates a strong suspicion against the good faith of the transaction, we think it fails to overcome the sworn facts set up in the answer and amended answer. The evidence discloses a preference between two creditors by William Kitson, rather than a fraudulent conveyance to one not his creditor. From the evidence he was as much bound legally and morally to pay his son for his ten years’ unpaid labor, as he was to discharge the debt of complainant, and he evidently and in good faith regarded his obligation to pay his son greater than his obligation to pay complainant’s judgment, for which he was but a security on the note. While he was as much legally bound to pay the one as the other, still we do not think, under the evidence, that because he chose first to pay his son, although it took all he had, this justifies the charge that in doing so' he was guilty of a fraud. Nor was there any fraud on the part of the son in attempting to secure his debt. The fact that his father was his debtor furnished no sufficient reason why he should not insist on payment even to the exclusion of others, if there was no more than enough to pay him. There is no doubt that John F. Kitson did remain at home substantially all the time after he became of age and worked on his father’s farm and managed it for him for about ten years.

This time belonged to him and he was as much entitled to be paid for it as the complainant was to have her judgment. paid. Both father and son swear that this service was rendered under the terms of an express contract and that the service was rendered in pursuance of it, and that it has not been paid for. There was, therefore, a valuab'e consideration for the deed, and large enough to support it, in the absence of proof to show that the land was worth more than the $2,400, with the mortgage and homestead incumbrance added.

Appellant complains that the court erred in permitting appellees to amend their answer and cited decisions of other States and the general chancery practice of courts of equity. This objection can have no force in this State under our statute. Sec. 37, Chap. 22, Chancery Practice Act, expressly confers on courts the power to allow amendments to bills, answers and replications at any stage of the proceedings, on such terms as the court may deem right.

But, aside from this statute, the complainant asked and obtained leave to amend her bill, and took a rule on defendants to answer time amended bill. She can not now complain that this answer does miot suit her, if it be in response to her amended bill. In this record we find no error and the decree is affirmed,

Decree ajflrmed~


source: Caselaw Access Project

author: C. B. Smith, J.

license: Public Domain

text:
    Julia Graham v. John Eiszner.
    Negotiable Instruments-Notes-Name of Maker-Failure of Con sic7era~ ion-So les-Erpress or Implied Warranty- Whisky Bariels-Leal'a~ e - Writteu Contract-Paro 1 Eciclen ce-In strii ction~-1'leadings- Varia~ ce -Practice.
    1. The appellant can not complain of an error committed by the dourt in settling the pldadings when no harm has resulted to him therefrom.
    2. A person may adopt any name, style, or signature over which he may transact business, issue negotiable paper and execute contracts, wholly different from his own name, and be may sue and be sued by such name, style, or signature.
    3. Parol contemporaneous understandings can not be allowed to vary en unambiguous written contract.
    4. Letters written by a party to a snit are inadmissible in his own behalf, the same being no part of a mutual correspondence.
    5. A former contract in writing is inadmissible in evidence in a suit between the parties thereto upon one of beter date and different tenor.
    8. `I'he law will not held another liable for the less of property where the owner has steed by and seen it go to waste, when by reasonable exertion and expense he might have saved it,
    7. One can not complain of instructions, which, though open to formal objections, contain no error of substance,
    8. It is proper to refuse an instruction which has no basis in the evidence.
    9. Instructions should lay down the law in the fewest and plainest words, without repetition, and in a consecutive, orderly manner. This court strongly condemns the giving of an excessive nmnber of instructions,
    10. In the case presented. while the defendant was not permitted to add an express warranty to her written contract by parol, she had the full benefit of an implied warranty that the barrels in question were reasonably fit for the purpose for which she pLrchased them.

      [Opinion filed December 8, 1888.]
    Appeal from Circuit Court of Winnebago County; the Hon. William Brown, Judge, presiding.
    Messrs. N. C. Warner and J. C. Carver, for appellant.
    Messrs. L. L. Morrison and A. H. Frost, for appellee.
    A person may adopt and use. as indicative of his negotiable and other contracts, a business name or style entirely different from his own proper name, and when he, by himself ova general agent, enters into a negotiable or other contract under such, adopted business name, he will be bound by such contract as effectually as though it had been entered into and executed under his own proper name and signature. Vol. 1, Daniel on Negotiable Instruments, 3d edition, Secs. 303, 399 and 399a; Vol. 1, Randolph on Commercial Paper, Sec. 141; Melledge v. The Boston Iron Company, 5 Cush. 158; Medway Cotton Manufactory v. Adams, 10 Mass. 360; Chandler v. Coe, 54 N. H. 561; Devendorf v. The West Va. Oil and Oil Land Company, 17 W. Va. 172; Bishop on Contracts, Ed. 1887, Sec. 1059.
    A parol warranty can not be attached to a written contract, and where a written contract contains no warranty it can not be supplied by parol. 2 Benj. on Sales, p. 821, Sec. 942, and note 13; Frost v. Blanchard, 97 Mass. 155; Wenner v. Whipple, 53 Wis. 298, 304; Memain v. Field, 24 Wis. 640, 642; Shepherd v. Gilroy, 46 Iowa, 193; 1 Parsons on Cont., 589, 590; Ostrand v. Reed, 1 Wend. 424; Reed v. Wood, 9 Vt. 285; Dean v. Mason, 4 Conn. 432; Randall v. Rhodes, 1 Curtis, 90.
   C. B. Smith, J.

This is an action in assumpsit to recover the amount of twel ve promissory notes. Ap pellee xvas a cooper in Chicago, and appellant was a distiller in Rockford, Illinois. Appellee had been furnishing whisky barrels, suitable to hold sour mash whisky, to appellant for the years 1883 and 1884, which had proven satisfactory. The barrels furnished for these two years were furnished, it is claimed by appellant, under a written contract containing an express warianty. Appellant desired more barrels to hold the same kind of whisky for 1885-6. The distillery was known in a general way as “ Graham’s Distillery” and was owned and operated by Julia Graham, the wife of Freeman Graham, under the name and style of “Freeman Graham, Agent,” and the distillery was managed and run by Byron Graham, son of Julia and Freeman Graham. The reason assigned for adopting the peculiar name under which the business was carried on was out of respect for Freeman Graham, who wras then quite an old and feeble man, and who had formerly carried on the business in his own name as the agent of his wife, Julia.

On the 24th day of October, 1885, Byron Graham went to Chicago and called on appellee at his place of business for the purpose of buying barrels for the ensuing fall and winter. After the matter had been talked over, appellee wrote out a proposition, stating the terms and times and manner of payment upon which he would furnish the barrels, and handed it to Byron Graham. The proposition submitted was as follows :

“ Chicago, Oct. 24, 1885.

“ We this day agree to make Graham’s Distillery at Bock-ford, Illinois, all the barrels, half barrels and kegs they may use this season, (and they expect to use about as many as last year,) prices to be for the barrels $2.65 each, half barrels §1.90 each, and 10 gal. kegs at §1.15 each. All delivered on board cars in Chicago. Terms to be notes for equal amounts on each invoice, at 6 mo., 9 mo. and 12 mo., each at 7 per annum.

“ Johh Eiszker.”

“ The above proposition accepted by us this day, Oct. 24, 1885.

“ Graham Distillery,

“ Per Byron Graham.”

Aftei examining it, Byron Graham wrote on it the following acceptance: “ The above proposition accepted this 24th day of October, 1885.

“ Graham’s Distillery,

“Per Byron Graham.”

The barrels, half barrels and begs were furnished under this proposition and delivered to the distillery, and received and used for the purpose for which they were made. The barrels were all delivered between the date of the contract and the first of April following, and in such numbers as appellant desired. The notes were executed at the time of their date and signed, lC Freeman Graham, Agent,” and delivered to appellee. The notes were not paid, and on suit being brought the defendant set up several defenses; at least we are so informed by the argument of appellant’s counsel; but none of the pleadings being copied into the abstract we are unable to determine what the issues were, except as we are advised by the argument. We learn, however, from this source, that the execution of the notes was denied under oath, and that numerous pleas purporting .to be pleas of failure of consideration were interposed. .Atrial was had resulting in a verdict for plaintiff for $1,604.23, and a motion for new trial overruled and judgment on the verdict; and now appellant brings the case here for review. Appellant assigns a great number of errors committed against her. From tlie imperfect condition of the abstract in this case, we might be well justified in affirming this judgment for want of any way of discovering whether any errors were committed or not, except to go back to the original transcript and there read 651 ¡'ages of the original record, which we can not undertake to do. Counsel for appellant makes long and bitter complaint of error committed by the court in settling the pleadings in the case, and insist that the mystification which gathered around court and counsel was denser than the famous London fogs,” and that the confusion of declarations and amended declarations and pleas and amended pleas and demurrers to them all was so great, that no intelligent issue was or could be formed, and that no rational or fair trial was possible in this luckless hediera and jargon of special pleading. And yet counsel have not seen fit to copy a single count of the declaration or a single one of her many good or bad pleas, into the abstract, so that we might see, if it were possible through this alleged fog and confusion, whether any error had been committed against appellant in that respect.

We have looked in vain in this abstract for a copy of any of the notes or the contract of October 24, 1885, or any one of the letters written by appellant (with one exception), which he insists should have been admitted in evidence.

But notwithstanding this condition of the abstract, we have given the case a careful and patient hearing upon its merits. It sufficiently appears from the record that the plaintiff finally met the views of the court with a good declaration, and that the defendant at last got the general issue to stick, and then proceeded to the trial. The court permitted everything to go to the jury on the trial, under the general issue, which could possibly have been offered under any proper special plea, and it was a matter of no importance to the defendant what became of her sjiecial pleas, so long as she was able to put her entire defense in under the general issue. So that, even if the court committed any error in the pleadings, she has suffered no harm from it, and can not be heard to complain.

Appellant complains that the court erred in admitting the notes signed, 66 Freeman Graham, Agent,” against Julia Graham, the party named in the decoration, and insists that there was a variance. The declaration alleged that Julia Graham executed the notes under the name and style of “ Freeman Graham, Agent.” The proof is uncontradicted, and is made by Byron Freeman himself, that Julia Graham did carry on the business under the name of Freeman Graham, Agent,” and that he, acting as her agent and manager, so signed the notes in controversy and delivered them to plaintiff. There was no error in admitting the notes under the averment in the declaration. It is well settled that any person may adopt any name, style or signature over which he may transact business and issue negotiable paper and execute contracts, wholly different from his own name, and may sue and be sued by such name, style or signature. Hynes v. Griffin, 89 Ill. 134; Vol. 1, Daniel’s Neg. Inst., 3d Ed., 303, 399 ; Melledge v. Boston Iron Co., 5 Cush. 158; Medway Cotton Factory v. Adams, 10 Mass. 360 ; Chandler v. Coe, 54 N. H. 561. The notes were properly admitted.

The real defense interposed and urged was one of failure of consideration. The appellant insists that she had a right to prove by parol an express warranty of the cooperage, and that the court erred in refusing her the right to do so. Appellant offered to prove by Byron Graham what was said between him and appellee at the time of making the contract in writing, October 24, 1885. It was proposed to prove by Graham that an express warranty of the barrels and kegs was then made that they would not leak, and that such warranty was not put in the written proposition and acceptance then entered into by the parties, and under which the barrels weie made and delivered. In order to justify this position counsel for appellant claim that the proposition and acceptance was a mere memoranda and not a perfect and complete contract in itself, and that evidence dehors may be resorted to for the purpose of adding to it an express warranty. We can not concur in this view. There is nothing incomplete or ambiguous in the proposition made. There was nothing about it that needed any explanation to make its terms intelligible. It had all the elements of a contract except the signature of appellant. When she accepted its terms it then became binding on both parties. There is no rule of law better settled than that which prevents contracts resting partly in parol and partly in writing. Parol contemporaneous understandings which are not included in the writing can not afterward be proven and attached to the writing. This rule is so elementary that it needs only to be stated. Smith v. Price, 39 Ill. 28; Purington v. Northern Ill. R. R. Co., 46 Ill. 297.

Nor can a warranty be attached to a written contract by parol. 2 Benjamin on Sales, p. 821, Sec. 942, and note B; Frost v. Blanchard, 97 Mass. 155; Wenner v. Whipple, 53 Wis. 298, 304; Shepard v. Gilroy, 46 Iowa, 193.

Counsel for appellantinsist that the case of Ruff v. Jarrett, 94 Ill. 475, supports them. We do not think so. The writing in that case claimed to be a contract was clearly no contract, and so the Supreme Court exjwessly hold. It w'as a very brief and imperfect memorandum relating to the sale of ice. It did not state the amount sold nor the price, nor to whom sold; It would be utterly idle to contend that such a paper had any of the elements of a contract, and that it could be enforced upon its own terms against any one, or for any sum, or for any purpose. It was utterly without any meaning on its face, and so the court held. Nor are the cases referred to by the court in that case analogous to this. Promissory notes do not stand on the same footing with reference to the point here involved, as other contracts in writing, at least so far as the consideration expressed in the note is concerned, and also as relating to the matter of usury. It has always been held that you may show a failure of consideration to a note, or that usury is embodied in it. Simple promissory notes never contain the terms and conditions of contracts out of which they grow. They are but the end and fruit of the contract, and have no reference to anything except the amount and time of payment, and hence where there is no other writing concerning the contract, its terms may be shown by parol. We think no error was committed by this refusal to admit the conversation had at the time of executing the contract.

During the progress of the controversy about the barrels, appellant, by her agent, Byron Graham, wrote certain letters to appellee about the barrels and their condition, and the terms of the contract, and upon the trial of the case offered these letters in evidence on her own behalf, to which objection was made by plaintiff and sustained by the court. The letters were no part of a mutual correspondence by the parties, when the letters on both sides were offered. We are not aware of any rule of evidence under which these letters could be admitted. A party can no more make evidence for himself by writing letters than he can by making oral declarations.

Objection is also made that the court erred in refusing to admit a former written contract for a previous year containing different terms including a warranty between the same parties. We think there was nothing in this objection. While appellant was not permitted to add an express warranty to the written contract by parol, she had the full benefit of an implied warranty. Whether the cooperage was as good as the implied warranty was the real question in the case. The implied warranty required the barrels to be reasonably fit and proper to hold sour mash whisky. On the trial appellant introduced a large number of witnesses who testified that the barrels, half barrels and kegs all leaked when the warm weather of the summer of 1886 came, and that in consequence of such leakage appellant lost nearly one thousand gallons of whisky, worth from two to three dollars per gallon. This leaking was charged to imperfect workmanship and to unseasoned material in the barrels by witnesses for appellant.

On the part of the defendant a large number of witnesses testified that the barrels were well made and that the material out of which they were made was well seasoned, and had been in store long enough to make it perfectly seasoned, and that there was no defect in the construction of the barrels, or want of dryness in the material entering into the construction. It was also in proof by many witnesses on both sides that no whisky barrel could be made so tight that it would not leak, and that such leakage must be prevented by driving the hoops as the leaks appeared.

It appears also in the evidence from the report of the government gaugers of this whisky, that what is known as £t wantage” accounted for fully one half, if not more, of the loss claimed by appellant. “Wantage ” covers what is lost by evaporation in the storage of whisky and what soaks into the barrels. This “ wantage ”. increases with the length of time whisky remains in store, and it amounts to so much that the government allows the manufacturer a rebate in his taxes on that account, according to a regular scale of loss according to the time the whisky is stored.

The question as to the condition of the barrels when made, and from the time they were received by- appellant until they .were used, and during the subsequent summer, and the amount of leakage and “ wantage,” and the rca ons for the same, were all fully and fairly submitted to the jury and considered by them. So far as we are able to see from this record the defendant was permitted to go fully into her defense and to submit every fact to the jury which she was entitled to do under the law, or which she could have given under any special plea which could have been properly pleaded. Instead of her not having had a fair trial, we think, on the contrary, the fullest indulgence was given by the court to her to make her defense and have it fairly and fully considered by the jury. We can not say that the verdict was not supported by the evidence.

It is next objected that the court erred in giving and refusing instructions prejudicial to appellant. We find the court gave eighteen instructions for the plaintiff and seventeen for the defendant, and refused two for defendant. We shall not stop to discuss this vast mass of instructions in detail. We have examined them and find no substantial error in those given for the plaintiff. Some of them may be open to formal objections, but we find no error of substance.

The first refused instruction for defendant told the jury that if they found the defendant had suffered loss by leakage from these barrels, that he was entitled to have it allowed in this case against the plaintiff. This instruction would have made the plaintiff a guarantor against any and all loss without reference to his implied warranty under his contract. There was no evidence to support the instruction, and it was properly refused. The second refused instruction told the jury that if the barrels were leaking, and that defendant could not have taken the whisky out of the leaky barrels and placed it in other vessels without considerable loss to herself, then she was not bound to do so, but might still recover for such leakage from the plaintiff. We do not think this instruction contained a correct proposition of law. The law will not permit any person to stand by and see his property destroyed or go to waste when, by reasonable exertion and expense, he might save it.

We desire to express our disapprobation of the reckless and utterly useless number of instructions presented to the court in this case by both parties to be passed upon. Such a mass of instructions does not enlighten or instruct a jury, but on the contrary, confuses them and renders the purpose of instructions from the court upon the law of the case utterly null and void. To the jury unaccustomed to legal formula, it must be and can be nothing more than a farce and jangle of jarring words, rung upon many changes and repetitions until to them it becomes i£ confusion worse confounded,” and if finally their good sense and practical judgment enables them to decide the case correctly it is not because1 of an unintelligible mass of instructions, but in spite of them. Instructions ought to lay down the law in the fewest and plainest words, without repetition, and in a consecutive, orderly manner. Courts ought not to allow themselves to be used for the purpose of making elaborate arguments to the jury 'through instructions. The writer of this opinion speaking for himself only, believes it to be the duty of the judges to prepare their own instructions to the jury in the nature of an orderly, direct and simple charge, and with as much brevity as consistent with a correct statement of the law, reserving the right to counsel to submit propositions as they may desire, and have them embodied in the general charge prepared and written by the court, if found ' correct.

Finding no substantial error in this- record the judgment is affirmed.

Judgment affirmed.


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    Patrick Moran v. Caroline Pellifant.

      Real Property — Incumbrance Assumed by Grantee — Rill to Compel Performance — Statute of Limitations — Parties—Amount Due — Interest.
    1. Upon a bill to require the grantee in a conveyance of real property to pay an incumbrance assumed by him as part of the purchase money, and to recover interest subsequently paid thereon by the grantor, it is held: That the alleged ignorance of the defendant is insufficient to overcome the clause in his deed whereby he assumed said incumbrance; that, in the absence of proof to the contrary, be must be regarded as a man of reasonable intelligence and business qualifications; and that the burden was upon him to overcome the evidence of the deed 'and,of the complainant’s testimony. .

      2, The retention of a portion of the purchase money by the grantee, the deed providing that such sum shall be applied in payment of an incumbrance thereon, which he assumes, constitutes him the grantor’s trustee, and he can not plead the statute of limitations to a bill to require him to discharge such indebtedness.
    3 A decree will not be reversed for want of necessary parties, unless it affirmatively appears that the party in question was interested in the subject-matter of the suit before the commencement thereof.

      4. The statute of limitations of 1872 is inapplicable to a note made in 1869.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Lake County; the lion. C. W. Upton, Judge, presiding.
    Messrs. Jones & Fisheb, for appellant.
    Messrs. Cook & Upton, for appellee.
   C. B. Smith, J.

'This was a bill brought against Patrick Moran and Peter Connolly in the Lake Circuit Court, by Caroline Pellifant, for the purpose of compelling Moran to pay a certain note of 8400 and accrued interest which he had agreed to pay.

The bill in substance alleges that on the 12th of July, 1869, complainant owned the southeast quarter of the southwest quarter, section 19, town 45 north, range 12 east, in Lake county, Illinois, and that on that day she executed to W. H. Ellis a trust deed on all of said land to secure the payment of her note of that date to Peter Connolly for 8400 and interest at ten per cent, per annum; that said trust deed was recorded in Yol. 35 of Mortgages, on page 78; that on September 14, 1875, the complainant, Caroline Pellifant, sold the east twenty-three acres of the §aid lands to Patrick Moran for §1,150; that at that time there was due to Peter Connolly upon the note and trust deed aforesaid, 8400, principal, and 846.66, interest, which said Moran assumed and agreed to pay as a part of the consideration of the deed to him from Pellifant, but that Moran has not paid the same.

That soon after the execution of said deed from Pellifant to Moran, said Moran induced Peter Connolly to consent to a release of said trust deed as to the twenty-three acres bought by Moran. Said bill makes Patrick Moran and Peter Connolly defendants, and prays for an accounting of the amount due Peter Connolly upon said note, and of the amount of interest thereon paid by Mrs. Pellifant to Connolly upon said note after she sold the twenty-three acres to Moran, and that Moran be decreed to pay the amount due Peter Connolly, and to pay to Caroline Pellifant the amount paid by her to Connolly as interest on said note and interest on said several amounts so paid by her.

The answer of defendant Moran filed March 17, 1888, admits that he purchased the twenty-three acres in question September 14, 1875, for §1,150, but denies any knowledge of any condition in the deed requiring Moran to pay Connolly $446.66 as alleged in the bill. Said answer avers that defendant Moran at the time he took the deed from Pellifant, paid her §700 in cash and gave her two notes of §225 each, and secured the same by mortgage on said twenty-three acres and that said notes had been paid and satisfied and that the said full purchase price of the twenty-three acres has been paid Mrs. Pellifant by Moran.

The answer also sets up and relies on the ten year statute of limitations, as to any contract to pay the Connolly note, but omits to plead and rely on the said statute as to his alleged liability to pay Mrs. Pellifant the interest she paid on said note, after he had assumed the payment of it.

The case was heard at the March term, 1888, and a decree was rendered in conformity with the prayer of the bill and Patrick Moran was decreed to pay Peter Connolly §488.66, the amount of principal and unpaid interest then due on said $400 note, and also to pay Caroline Pellifant $454, which was the amount of interest she had paid on the §400 note after Moran had agreed to pay the same, with six per cent, interest on such payments up to the date of such decree. These two amounts were decreed to be liens against the said twenty-three acres in conformity to the prayer of the bill. Defendant Moran now appeals to this court and brings the record here for review and insists that the decree is erroneous in finding him liable to pay said money or any part thereof. Peter Connolly made no defense as no relief was asked against him, and as to him a default was entered.

Defendant Moran admits buying the land and that he was to pay §1,150 for it, and insists that he has fully complied with his undertaking. lie testifies that at the time the purchase was made he paid cash down $700 and gave two promissory notes for §225 each, making the sum of $1,150, and that he executed his mortgage to secure the notes, and has since paid both of said notes and had his mortgage released. On the contrary, complainant testifies that he only paid cash dowm 8300 and executed his two notes for $225 each, making in all $750 to be paid her, and that he assumed the $100 note and mortgage due Peter Connolly and that the agreement was put in the deed given him. She also testifies that after assuming the payment of the note the defendant did not either pay the note or the accruing interest, and that Connolly kept demanding the interest of her and that she kept paying it until July 12,1885.

The sale was made to defendant Moran September 14, 1875. Her only explanation for paying inrerest on this note after Moran had agreed to pay it, is, that Connolly kept demanding it from her and that Moran did not pay it and that she knew nothing of Moran. There is no proof that she ever demanded that Moran should pay the note and interest until she brought this bill. Moran and his daughter both testify that they went to complainant’s house and asked her what she sued him for, and that she then admitted that Moran had paid her $700 cash, hut complainant testifies in reply to this, that what she said and meant on that occasion was, that the §700 included the two notes of §225 each.

The agreement on the part of appellant to pay the note given Connolly was recited in the deed from appellee to him as follows:

“ This conveyance is made subject to the payment of a certain note made and executed by Caroline Pellifant to Peter Connolly for the principal sum of four hundred dollars, dated July 12, 1869, and secured by trust deed of that date, to Warren H. Ellis, as trustee, which deed is recorded in Lake county, in Yol. 35 of Deeds, page 78. Upon said note there is now due the sum of four hundred and forty-six dollars and sixty-six cents, which the grantee herein is to pay and discharge as part and parcel of the consideration of this conveyance.”

The defendant seeks to avoid the force of this provision in his deed by saying that he did not know it was in his deed, and that he did not read his deed and had it recorded without reading. In the absence of proof to the contrary we must treat defendant hloran as a man having reasonable business qualifications and of reasonable intelligence. In ¡he light of this presumption and the evidence in the case, we regard his explanation of this clause in the deed as wholly insufficient. He does not deny that Brown drafted the deed which he accepted, and the mortgage which he gave. , It is unreasonable to suppose that he bought this land at $50 per acre without knowing anything about the title or having made any examination of the record. He himself says that he and Connolly called on plaintiff a few days before the purchase and talked with her about it. In a few days after he got this deed he went to Connolly and procured the release of Connolly’s mortgage as to that twenty-three acres, leaving it all in force as to the other seventeen acres which complainant had not sold. These facts alone create a very strong presumption that he knew before and after he bought the land that this mortgage was on it, and to suppose with this knowledge he would buy the land and pay the full purchase price for it with the incumbrance still on it, would do violence to his intelligence and be utterly inconsistent with the ordinary methods of transferring titles.

Nor is it consistent with reason or common experience that men accept deeds without reading them or having them read to them and so not knowing what land or what title they are getting or what incumbrance they are assuming. If the testimony of defendant is to be relied on, then he simply gave $1,150 for this land, neither knowing nor caring what title he got nor with what incumbrance it was burdened. But upon these points he is directly contradicted by complainant, who swears he did know of the incumbrance, and that he did assume it and agree to pay it as a part of the purchase money; that he has not done so; that he did read the deed, or that it was read to him, and that he knew its covenants.

But the deed itself is the best evidence of the contract, and is infinitely stronger than the recollections of parties after the lapse of twelve years, however honest they may he. It would be a most reckless and dangerous proceeding to allow parties to come into court and swear away their own solemn admissions and contracts in deeds, years after they have been made.

If this could be done, no covenant in a deed would be safe either against cupidity or forgetfulness. If, in fact, any mistake was made in this deed, and this burden of paying the §100 note wrongfully imposed on the defendant, he knew very soon afterward, when he got Connolly to release the mortgage as to that land, that such provision was in the deed, and it was his duty then to have asked complainant to correct the mistake; and, failing in that, he should have appealed to a court of equity to reform the deed when facts were all fresh in the minds of the parties. The only fact militating against complainant’s claim is the fact that she continued to pay interest on this note annually for about ten years after the date of the deed, and without asking the defendant to do it, or to pay the note.

This circumstance is not without force. But the force of it is much weakened when we remember that the mortgage was still an incumbrance on her remaining seventeen acres, and to protect it she must see to it that the interest or note was paid. Connolly made his demand against her annually for his interest. Connolly had, by his own wrongful act, released Moran, or at least released his mortgage on Moran’s twenty-three acres, and, so far as it was in his power, threw the whole burden of the mortgage on Mrs. Pellifant’s seventeen acres. She swears that she knew nothing about Moran after he paid the two notes made to her. She was an old palsied woman, weakened in body and mind, as the nature of her affliction would indicate. We can not hold that this circumstance is of sufficient force of itself to overcome the conclusive evidence in this record of the defendant’s liability. When the plaintiff produced the note and the deed, she made a prima facie case, and the burden was then shifted on the defendant to show payment and to overcome the evidence of the deed and plaintiff’s own testimony. This he failed to do.

Defendant pleads the ten year statute of limitations, approved April 4, 1872, and pleads it to the note itself. ¡Nothing is said in his plea or answer as to any bar for interest paid by Mrs. Pellifant. The 8400 note was made on July 12,1869, and was governed by the sixteen year statute of limitations.

The plea of the statute of limitations meeting no claim presented by the complainant in the proof, calls for no further' discussion. We will say, however, that even if the proper statute had been pleaded, and to cover the whole claim, it can have no application to this case under the authority of C. & E. I. R. R. Co. v. Hoyt et al., 119 Ill. 493. The defendant by his agreement became a trustee for complainant and could not plead the statute of limitations.

The defendant also insists that one Peter Smith, who now claims to own this twenty-three acres of land, should have been made a party to the suit, and that, he having an interest in the land, it was error to decree the sum found due a lien on the land without having made him a party to the suit.

This position would be correct if the record showed that he bought the land before the commencement of the suit, but it does not. If he bought after the commencement of the suit he is not a necessary party. A party can not buy into a law suit and thereby make himself a necessary party. We can not reverse this decree for want of necessary parties, unless it affirmatively appears they are such.

The only remaining point urged against the decree is that the court erred in computing the amount due, and that the decree is in excess of the amount actually due. We do not find the court erred in its calculation or in stating the account, which was done by agréement of the parties. Finding no error in the record, the decree of the Circuit Court is affirmed.

Decree affirmed.

Mr. Justice Upton took no part in this case, having tried the case below.


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    The People ex rel., etc., v. James J. Connell.
    Quo Warranto — Eligibility to Office of County Judge — Citizenship— Domicile — Change of- — Art. 6, Sec■ 17, Constitution of Illinois — Evidence.
    1. To effect a change of domicile, there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with ihe intention of making the last acquired residence a permanent home.
    2. A husband may go to another State in quest of health for his wife and remain a considerable length of time without losing his residence in this State.
    3. In a proceeding by quo warranto to test the right and eligibility of the relator to the office of county judge, under Art. 6, Sec. 17, of the Constitution of this State, it is held. That the election and commission of the relator raise a strong presumption of his eligibility; and that the evidence does not overcome this presumption.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Mercer County; the Hon. George W. Pleasants, Judge, presiding.
    Mr. John C. Pepper, for appellant.
    “ If a person has actually removed to another place with the intention of remaining there for an indefinite time, and as a place of fixed, present domicile, it is to be deemed his place of domicile, notwithstanding he may entertain a floating intention to return at some future period.” Story on Conflict of Laws, par. 41, 42, 46 and 47. See also Hart v. Lindsey, 17 N. H. 295; Hairston v. Hairston, 27 Miss. 704; Warren v. Thomaston, 43 Maine, 406; Gilman v. Gilman, 55 Me. 165; Shelton v. Tiffin, 6 How. 163; Frost & Dickinson v. Brisbin, 19 Wend. 11; Whitney v. Sherborn, 12 Allen, 111; Colton v. Longmeadow, 12 Allen, 598; Holmes v. Greene, 7 Gray, 299; Pitman v. Johnson, 10 Mass. 488; Thayer v. Boston, 124 Mass. 132; Lyman v. Fiske, 17 Pick. 234; State v. Groome, 10 Iowa, 308; High’s Appeal, 2 Doug. 515; Ringgold v. Bailey, 5 Md. 186; Hood’s Estate, 21 Pa. State, 106; Kashaw v. Kashaw, 3 Cal. 312; Smith & Armistead v. Croom et al., 7 Fla. 81; Board of Supervisors v. Davenport, 40 Ill. 197.
    Lord Campbell in the case of Aikman v. Aikman, 3 Macq. H. L. Cases, 203, tersely gives the law as follows: “If a man is settled in a foreign country in some permanent pursuit requir ing his residence there, a mere intention to return on a doubtful contingency will not prevent such residence in a foreign country from putting an end to his domicile of origin.”
    Messrs. Sweeney & Walker, for appellee.
    The term “ residence” in its legal use has a more or less restricted meaning, according to its application. Generally it signifies what we understand by the home — domicile—the permanent abode where one lives without any present and absolute intention to change it and to which, whenever absent, he intends to return. Hays v. Hays, 74 Ill. 314; Dale v. Irwin, 78 Ill. 181.
    The Constitution, with reference to eligibility for office, contemplates a residence which is equivalent to home — domicile —permanent abode. This is apparent from the length of time prescribed. Smith v. The People, 44 Ill. 16; Wilkins v. Marshall, 80 Ill. 74; Johnson v. The People, 94 Ill. 512. Residence and domicile are equivalent terms. McDaniel v. King, 5 Cush. 472; Smith v. Smith, 98 Mass. 160; Hays v. Hays, 74 Ill. 312; Love v. Cheney, 24 Iowa, 284; Hall v. Hall, 25 Wis. 607; Kellogg v. Supervisors, 42 Wis. 106; Wal'ace v. Lodge, 5 Brant. 507; Hallett v. Bassett, 100 Mass. 107; Harvard Coll. v. Gore, 5 Pick. 370; Spragins v. Houghton, 2 Scam. 396; Supervisors v. Davenport, 40 Ill. 197; Thorndyke v. Boston, 1 Met. 242; Sears v. Boston, 1 Met. 250; Gilman v. Gilman, 52 Me. 165.
    Domicile or residence, once established, continues until abandoned and another of like character acquired in its stead. Hays v. Hays, 74 Ill. 314; Jemison v. Heapgood, 10 Pick. 77; Glover v. Glover, 18 Ala. 365; Hardy v. DeLeon, 5 Texas, 211; Leach v. Pillsbury, 15 N. Y. 137; Kilburn v. Bennett, 3 Met. 199; Sacket’s Case, 1 Mass. 58; Alington v. Boston, 4 Mass. 312.
    A change can only be effected by the union of intention and act. Smith v. People, 44 Ill. 16; Smith v. Croom, 7 Florida, 149; Desmare v. United States, 93 U. S. 605; Mitchell v. United States, 21 Wall. 350; C. & N. W. R. R. Co. v. United States, 117 U. S. 123.
    It is a question of intention from all the facts and circumstances in the case. Kitchell v. Burgwin, 21 Ill. 44; Ives v. Mills, 37 Ill. 75; Walters v. The People, 21 Ill. 178; Smith v. The People, 44 Ill. 16; Smith v. Croom, 7 Florida, 200; Shaw v. Shaw, 98 Mass. 158; Hays v. Hays, 74 Ill. 312.
    Conditional change on account of climate or other reason does not forfeit residence. Smith v. People, 44 Ill. 16; Wilkins v. Marshall, 80 Ill. 74; Kitchell v. Burgwin, 21 Ill. 40; Potts v. Davenport, 79 Ill.45.
    Declarations by a person relative to residence are admissible when made in and about his departure or in and about his going, or his remaining or returning. Wallace v. Lodge, 5 Ill. App. 507; Thompson v. Homestead, Sec. 269; Drake on Attachment, Sec. 54; Forbes v. Forbes, Kay, 341; Isham v. Gibbons, 1 Bradf. 69; Elder v. U. S. Ins. Co., 16 Johns. 128; Miner v. Clark, 33 Vt. 60; Fish v. Chester, 8 Gray. 50; Dupins v. Wartz, 53 N. Y. 556; Kilburn v. Bennett, 3 Met. 199; Gurgor v. Clark, 3 Ind. 250; Gilman v. Gilman, 52 Me. 165; Heill v. Crowley, 26 How. 413.
   C. B. Smith, J.

This is a proceeding in quo warranto, brought by the people on relation of J. H. Ramsey against J. H. Connell to test his right and eligibility to the office of county judge of Mercer county, Blinois, to which he was duly elected at the ¡November election, 1886.

The petition charges that the respondent intruded into and usurped the office of county -judge of said county.

The respondent denies the allegation in the petition, and in his plea sets up his right to the office. ¡No question is made by the relator as to the legality of the election, nor that respondent did not receive a majority of the votes. The only question raised is as to the eligibility of the respondent.

Sec. 17, Art. VI, of the Constitution of Illinois, provides that, “¡No person shall be eligible to the office of judge of the Circuit Court or any inferior court, unless he shall be twenty-five years of age and a citizen of the United States, nor unless he shall have resided in the State five years next preceding his election, and a resident of the circuit in which he shall be elected.”

The petition alleges that the respondent had been a resident of Mercer county for many years, and that in the spring of 18S2 he closed up all his business here, sold his home and moved with his family to the State of Colorado, went into business there and became a permanent resident of that State, and remained there until February, 1881, and that in that month and year he again returned to Illinois and was elected to the office of county judge in ¡November, 1886, but that he was not qualified to hold that office by reason of not having been a resident of the State five years next before his election.

It is conceded that respondent left this State in 1882, and that he remained away substantially all the time until 1884; that he sold his property here, and upon his arrival in Coh.rado he formed a co-partnership in Pueblo for the practice of law, and that he was admitted to the bar there, after making an affidavit that it was his intention to become a citizen of that State; that after the dissolution of his first partnership he formed another partnership for the practice of law and con-tinned in that lDation for about a year; that during the time of his absence he in fact practiced law in the courts as a resident attorney, and to all appearances a permanent citizen and resident of Colorado. The petition relies on these admitted facts as being conclusive against the respondent’s citizenship and residence in this State for the required length of time to entitle him to hold the office.

While the respondent admits the foregoing facts, he denies these conclusions against him, and denies that it was ever his intention to abandon his residence in this State, except on the condition that it should be found that his wife’s health could be permanently improved by a residence in Colorado, and also that it should be further ascertained that she could not safely return to Illinois. It appears from the proof that the respondent’s wife’s health was in a failing condition. She had been receiving medical treatment in Quincy, but without benefit, and had returned home. Her husband and family became alarmed at her condition, and the advice of the family physician was sought. He did not think she could live in Illinois, and advised a visit of at least two years’ length to Colorado, then supposed to have a climate favorable to those having pulmonary trouble. But Colorado was a long way off, and respondent was not willing to send his wife so far away alone, in her feeble condition. She needed his care and society and he finally determined to sell out and go with her, and make a trial of the climate on his wife’s health, and if it should prove permanently advantageous to her, and it should not be safe for her to return to Illinois, then he should make Colorado his permanent home; otherwise he should return to Illinois. Before and about the time he left he declared on many oeeasions and to many different persons, both orally and by letter, that his trip west was to be only experimental and his stay conditional, depending on his wife’s health. On his way to the west he stopped at different places and made the same statement to his friends whom he visited on the road. After he wont to Colorado he wrote letters to the same effect. On different occasions while in Colorado he refused to vote, although being pressed to do so, placing his refusal on the ground that he was not entitled to vote, and that he did not desire to put himself in an attitude to lose his residence in this State.

Respondent swears that it never was his intention to permanently abandon his residence in Illinois, unless the requirement of his wife’s health made it necessary for him to do so, and that that was the sole condition of his remaining away. After being there about two years he wás advised by his wife’s physician that she had realized all the benefit from the Colorado climate which she was likely to receive, and it was thought she might safely return to Illinois. Some time after this communication to him, he and his wife were called hack to Aledo, Illinois, their former home, on account of the death of his wife’s father. After a somewhat protracted visit, it was thought that his wife might again safely live in Illinois. She then remained here through the winter, and seemed to suffer no inconvenience from the climate. It was then decided that she should remain here and respondent go back to Colorado and close up his business, which he did, and then returned again to Illinois. A great deal of testimony was taken on the trial concerning the deelarations and acts of respondent, which we shall not attempt to go over or to discuss in detail. After a careful consideration of all the evidence, we are satisfied that the relator entirely failed to establish the charge of ineligibility, and that the respondent furnished satisfactory proof that he never did form a settled purpose to abandon the State, but that it was all the. time his intention to return to Illinois upon the restoration of his wife’s health. This purpose was declared by him long before there could have been any purpose on his part to manufacture testimony for himself. Upon questions of residence the acts and conduct of a party are always entitled to great weight, but they are not conclusive. These acts maybe explained by his declarations at the time of doing the acts as parts of the. transaction, so that from the acts and declarations made when there can be no purpose or object to fabricate evidence, the real intention of the party may be ascertained.

The acts dune by respondent in this case, unexplained, would certainly make a strong case against him, but the explanation for all these acts seems to us to be fair and reasonable, and consistent with a purpose not to abandon his home in Illinois unless the requirements of his sick wife should make it necessary for her to remain permanently away from her old home and her family. We hold that a husband may go from one State to another in quest of health for his wife, and remain there a reasonable length of time for that purpose, without losing his residence. Great stress is laid by the relator upon the fact that respondent sold all his property in this State, and upon reaching Colorado bought him a library suitable for the demands of the practice in that State, and that he did go into business there and engaged in the practice of his profession. Respondent says he was compelled to do these things to provide means to support himself and wife while living there. This action being of a criminal nature, the proof of usurpation must be clear and satisfactory. Smith v. The People, 44 Ill. 16.

The election and commission of relator raise a strong presumption of his eligibility, which must he overcome by the proof. Smith v. The People, 44 Ill. 16. “ To effect a change of domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence within another jurisdiction, coupled with the intention of making the last acquired residence a permanent home.” Hays v. Hays, 74 Ill. 312. Under the last above rule laid down, we think the proofs fail to show that the relator ever gained a permanent residence in Colorado, or that he lost his residence in Illinois.

We think the finding and judgment of the court below was correct, and the judgment is affirmed.

Judgment affirmed.


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    W. H. Truesdell v. W. F. Hunter.

      Principal and Surety — Note—Extension—Pleading—Discretion as to Order and Time — Burden of Proof- — Affidavit of Merits — Motion to Strike Pleas from Files. '

    1. The order and time of pleading rests in the sound discretion of the trial court, and the action of that court is not subject to review, unless it appears that such discretion has been improperly exercised to the prejudice of the party complaining.
    2. An extension of time that will operate to release a surety on a promissory note must be for a definite time, without the consent of the surety, and upon a new and sufficient consideration.
    3. ■ In an action against a surety on a promissory note, the burden of proof to support pleas of alteration and extension is upon the defendant.

      4. Where an affidavit of merits is attached to the declaration, the defendant has no right to file pleas without an affidavit of merits.
    5. In the case presented, the affidavit attached to the general issue, putting in issue the signature of the note, was not such an affidavit of merits as the statute requires, and the court should have allowed the plain till’s motion to strike the pleas from the files.
    [Opinion filed December 8, 1888.]
    Appeal from the City Court of Elgin County; the Hon. A. H. Barry, Judge, presiding.
    -Messrs. Ií. M. Ireland and James Coleman, for appellant.
    While it is, no doubt, law, that if the creditor, by a valid and binding agreement, without the assent of the surety, gives further time to the principal, the surety is discharged, yet it is equally the law that “ mere passiveness or delay in proceeding against the principal will not discharge the surety.” Pearl v. Welman, 11 Ill. 352. “All that a surety has a right to require of a creditor, in the absence of a statute provision, is that no affirmative act be done that will operate to his prejudice.” Villars v. Palmer, 67 Ill. 204. “To discharge a surety by reason of an extension of the time of payment, there must not only be a sufficient consideration, but the time must be definitely fixed.” Gardner v. Watson, 13 Ill. 347.
    The extension of time of payment, even for a definite period, leaving the rate of interest the same, has never, so far as we are aware, been held to be a contract founded on a sufficient consideration to be valid, and to release the surety. In the case of Dodgson v. Henderson, 113 Ill. 364, the Supreme Court has pushed the principle to the farthest verge of which we know, when they say that if the time of payment is extended to a definite time, and the principal debtor agrees to keep the money that time, and pay the interest promptly at the expiration of the time, there is a sufficient consideration for the promise to extend the time of payment, and the surety will be released.
    The statute requires that the defendant “ shall file with his plea an affidavit stating that he verily believes he has a good defense to said suit upon the merits, to the whole, or a portion of the plaintiff’s demand,” etc. Sec. "37, Practice Act. If there had been no plea but that of the general issue filed, the statute might have been substantially satisfied; but there was a special plea also on file, and the effect of a verification simply of. the plea of the general issue would be to swear that he, the defendant, had a good defense, such as might be made under the general issue, but would necessarily exclude any verification of a defense to be made under a special plea. An affidavit in conformity with the statute would have covered any defense that could have been made under either the plea of the general issue or any special plea. But the defendant having seen fit to Confine his verification simply to the general issue, the special plea not being verified in fact nor even by implication, he should have been confined to a defense under the general issue, and the special plea should have been stricken from the files upon the plaintiff’s motion. The court’s refusal to do so, we submit, was error. “Where the statute requires plea to be accompanied by affidavit of merits, a plea unaccompanied by such affidavit should be stricken from the files.” Filkins v. Byron, 72 Ill. 101.

      Messrs. J. A. ¡Russell and H. B. Willis, for appellee.
    The appellant contends that it was error on the part of the trial court to permit the filing of such plea by the defendant Hunter. We believe it has been uniformly held by the Supreme Court of this State, that the granting of such leave is a matter which rests in the sound discretion of the court and can not be assigned for error except upon an apparent abuse of such discretion by the court. Drake v. Drake, 83 Ill. 526; Knickerbocker Ins. Co. v. McGinnis, 87 Ill. 70.
    The law is well settled that any alteration of a note, however slight, by one having an interest therein, which changes the terms of the contract, will avoid the note or instrument thus altered, if made after the delivery of the same, without the knowledge or assent of the makers. Gardiner v. Harback, 21 Ill. 129 ; Benedict v. Minard, 58 Ill. 19; Burwell v. Orr, 84 Ill. 465; Kelley v. Trumble, 74 Ill. 428.
    A successful defense could be made to the note in question by the defendant, Hunter, on account of such alteration, and the leave was properly granted.
   C. B. Smith, J.

This was an action of assumpsit on the following note:

“$250. Elgih, Dec. 13, 1880.

“On or before one year after date we, or either of us, promise to pay to the order of W. H. Truesdell $250, at the Home ¡National Bank of Elgin, value received, with interest at 8 per cent, per annum.

“¡No. 531. Due Dec. 13, 1881.

“ G. H. Shebmah, “Wm. F. Hunter.”

Hunter alone was served and the case was tried as to him.

The defendant first pleaded the general issue and one special jilea, setting uji that he signed the note as surety and that the payee had extended the time for payment one year to the principal debtor for a consideration without the knowledge or consent of this defendant, wherefore he was discharged, etc.

After the pleadings were in this condition, defendant asked and obtained leave to withdraw the general issue for the purpose of obtaining the opening and closing before the jury. The cause then proceeded tó trial and Hunter was placed on the stand to prove his signature, and then he stated that he signed the note, but that the note had been altered since lie signed it, and that the words “ on or before” had been added and the words i'or either of us’’’’ had been interlined since he signed it.

The defendant then asked and obtained leave to file another plea denying the execution of the note, and then filed the general issue sworn to against the objection of the plaintiff.

The trial then proceeded resulting in a verdict for defendant. A motion for new trial was overruled and judgment rendered on the verdict against the plaintiff. The plaintiff brings the case here on appeal and asks for a reversal of the judgment and assigns the usual errors.

The plaintiff complains of the action of the court in first allowing the general issue to be withdrawn and then allowing it to be again filed so as to put the signature and alleged alteration of the note in issue. In this there was no error. The order and time of pleading rests in the sound discretion of the court and is not subject to review by this court unless the court can see that the discretion has been improperly exercised to the prejudice of the partly complaining. Upon this issue made on the alteration of the note by the sworn plea of the defendant, we think the proof fails to show the alteration.

The charge in the plea amounts to a charge of forgery and the burden is on the defendant to establish the. charge. The plaintiff positively denies it, and all the evidence in support of the plea is of a very uncertain and unsatisfactory character. But we think the changes charged to ■ have been made in the note are immaterial and presented no defense, even if they had been made. .

The legal aspect of the note was not changed. The alleged changes gave the plaintiff no right he did not before have nor cast any additional burdens on the makers of the note.

We think the defendant also failed to establish his defense made under his special plea which set up an extension of time. To make this defense availing and successful it is the settled law of this State that there must be a new, valid and binding contract between the payee and principal maker of the note (without the consent of' the surety), capable of legal enforcement. The time for which the extension is made must be a part of the agreement and fixed, and it must be upon a sufficient consideration. This was held in Gardner v. Watson, 13 Ill. 347.

Counsel for appellee contend that this rule is re1 axed in Dodgson v. Henderson, 113 Ill. 360, but we do not think so. On the contrary, we think the facts in the case come fully within the rule laid down in Gardner v. Watson, supra.

The time for which the extension was made was definitely fixed to a certain day named and the maker agreed to keep the money until that time and to pay the interest annually.

The agreement to extend to a certain day on the one hand and the agreement to keep the money until that day by the other party, was a valid and binding agreement capable of enforcement by either party, and the agreement to pay the interest annually, which was not expressed in the note, was a sufficient consideration to support the mutual promises even if such consideration was needed to support the mutual promises. How, do. the facts established by the proof in the case at bar bring this case within the rule ? We think not. Upon appellee’s own testimony there is a clear failure to show that, even if the time was extended to a definite date, he had agreed on his part to keep the money or to do anything, in fact, except what the note already required him to do. But, even upon the point of fixing any day or time to which the extension was made, appellee’s own testimony is too indefinite and uncertain to establish that point in his favor. His statements are directly contradicted by appellant as to any definite time being fixed for the extension.

The burden of proof was on appellee to support this plea upon all its material averments and we think he failed to do so.

Appellant alleged error in the action of the court in refusing to strike appellee’s pleas from the files on his motion, for want of an affidavit of merits to his pleas. The declaration had the common counts and an affidavit of merits attached.

"Under the statute the defendant had no right to file pleas without an affidavit of merits on his part. The affidavit attached to the general issue putting in issue the signature of the note was not such an affidavit of merits as the statute requires. The court sl:o dd have allowed appellant’s motion to strike these pleas from the files and in failing to do so there was error. For this error the judgment is reversed and the cause remanded.

lieversed, and remanded.


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    W. W. Salsbury v. Henry Falk.

      Pleading — Sufficiency of Plea Charging Fraud. — Public Lands — Entry— Application.

    1. Pleas charging fraud must state clearly and specifically the facts done 3r omitted which are supposed to constitute such fraud.

      2. In the case presented, the court below properly sustained a demurrer to the plea to the effect that the money sought to be recovered was advanced to the defendant for performing certain illegal services, there being a failure to state facts involving the parties in any willul fraud.
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Straws' & Patton;’ for appellant.
    All persons are conclusively presumed to know what the law requires. In legal contemplation, appellee knew a fraud was being committed against the laws of the United States, and knew he was paying out §250 to appellant for assisting him in such fraudulent transaction.

      Appellee can not plead ignorance of the law. Elliott v. Swartwout, 10 Pet. 137; Mowatt v. Wright, 1 Wend. 355; Branham v. San Jose, 24 Cal. 585; Silliman v. Wing, 7 N. Y. 159.
    The want of a consideration is of no avail against an exe~ cuted contract. Maxwell v. Graves, 59 Iowa, 613.
    An agreement to do an illegal act can not be enforced by either party. Bishop on Contracts, § 467.
    But the voluntary performance of the illegal agreement by both parties places them, in effect, in the same position as if
    the original contract had been good; the law will help neither. Greenwood v. Curtis, 6 Mass. 358; Morris v. Hall, 41 Ala. 510; Green v. Hallingsworth, 5 Dana, 173; Myers v. Meinrath, 101 Mass. 366; Jacobs v. Stokes, 12 Mich. 381; Liners v. Hosing, 44 Ill. 113; Arter v. Byington, 44 Ill. 468.
    Messrs. U. Q. Tanquart and McIldujff & Toréanos, for appellee.
    If the plea stated facts showing the transaction between plaintiff and defendant was an illegal one or prohibited by law, it shows that defendant was only acting as the agent of Charles A. Florence, of Chicago. The plea does not show that the defendant had paid the money over to his principal. Under the law, even though the transaction was a fraudulent one — one in which the law would help neither of the parties if completed — yet, where one of the parties to the transaction rescinds, as he may do while the money is in the hands of the agent, lie can maintain an action to recover the money back from the agent. To permit this, say the courts, “ is merely to allow a locuspccnitenticB, and to prevent the illegal contract from being executed at all.” Merryweather v. Nixon, 2 Smith’s Lead. Cas. 7th Am. Ed. p. 479, and notes thereto; Knowlton v. Empire Spring Co., 14 Blatch. 364; White v. Franklin Bank, 22 Pick. 189; Adams Express Co. v. Reno, 48 Mo. 264; Hooker v. DePalos, 28 Ohio St. 251; Edgar v. Fowler, 3 East, 225.
    By pleading this special plea the defendant must show clearly that the plaintiff is debarred from recovering from him, upon grounds of public policy, the money he admits he secured. He is entitled to no consideration or protection at the hands of the court. The reason of the law is better and broader than that. It is the benefit of the public, and not the advantage of the defendant to an action, that is to be considered in cases in which one or more of several parties in pari delicto rely for defense upon the illegality of the transaction out of which the claim arises. In such cases the presumption is in favor of the transaction, and if it be susceptible of two meanings, one legal and the other not, that interpretation will be put on it which will support and give it operation. Lewis v. Davison, 4 Mees. & W. 654; Mittelholzer v. Fullerton, 6 Q. B. 989; Biel v. Miller, 11 Bush. 306.
    In order to make a contract unlawful, as being against public policy or law, it must be manifest^ or directly so. It is not sufficient that the contract is connected with some violation of law remotely or indirectly. Bier v. Gratt, 24 Gratt. 1.
   C. B. Smith, J.

This is an appeal from the Circuit Court of Living- ton. The action is assumpsit on the common counts. The plaintiff sought to recover only on a claim for money advanced to the defendant for his use.

The defendant pleaded a special plea, setting up that the money was advanced to him by plaintiff for the jmrpose of "paying him for performing certain illegal services for the plaintiff. The defendant afterward obtained leave to amend this plea, the amended plea being as follows:

“And now comes the defendant, by Strawn & Patton, his attorneys, and defends the wrong and injury, when, etc., and says that the plaintiff ought not to have his aforesaid action, because he says that the claim of the plaintiff under said declaration and bill of particulars filed herein is for money paid to the defendant by plaintiff; at his request, and defendant avers that said money was paid to him by the plaintiff for the purpose of procuring an entry of 160 acres of government land located in the State of Nebraska., under the timber culture land laws of the United States, by means of a written application signed by the plaintiff in the- State of Illinois, the same never having been sworn to by said plaintiff before the register or receiver of the land office or the clerk of a court of record, or other officer authorized to administer oaths in the government land district where the said land was situated; nor did the defendant, know the law required said written application to be sworn to; and defendant avers that said blank application was forwarded to him by Charles A. Florence, of Chicago, Illinois, and that he procured the signature of plaintiff thereto and returned the same to said Florence, and by that means defendant procured from the register the receipt for the payment of the government fee provided under said laws, the plaintiff well knowing, at the time he signed said application, that he was not to swear to the same, and further knowing, at the time he received said receipt, that he had not ■ made an affidavit to the facts set out in said application, as required by law. And defendant avers that for such illegal service he received from the plaintiff the money now sought to be recovered back in this action. And this the defendant is ready to verify, wherefore he prays j udginent,” etc.

A demurrer was entered to this plea by appellee, and sustained by the court, and appellant abiding by his plea, and there being no other plea on file, a jury was called to assess tlxe damages, which they did at $250.

After overruling a motion for a new trial, the court gave judgment on the verdict; and appellant brings the case here on appeal and assigns for error the action of the court in sustaining the demurrer to his amended plea,

We think the demurrer was properly sustained, and that there was no error in so doing. The plea entirely fails to set up any such state of facts as involved either the plaintiff or the defendant in any wilful fraud upon the government. It was probably the intention of the pleader to do so, but he signally failed. The plea seems to be unintelligible. It is certainly wanting in every element of a good plea charging fraud. Pleas alleging fraud must state clearly and specifically the facts done or omitted which are supposed to constitute the fraud, so that the court may determine from the facts stated whether or not a fraud has been committed, and so that the party charged with the fraud may know what acts and facts are alleged against him, and be prepared to deny them in his replication a.nd meet them on the trial.

The plea being bad in all these respects, the demurrer was properly sustained, and the judgment is affirmed.

Judgment affirmed.


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    G. W. Vanscoy v. C. L. Bigelow et al.

      Replevin — Sales—Delivery of Possession — Sufficiency of — Instructions —General Objections.

    In an action of replevin to recover a coal office, shed and scales taken under an execution against a third person, it is held: That the transfer of the property to the plaintiffs upon a sale before the levy of the execution was not fraudulent, the possession taken being sufficient in view of the nature of the property sold; and that, in the absence of specific objections, no error in the instructions appears.
    [Opinion filed December 8, 1888.]
    Appeal from 'the Circuit Court of Livingston County; the Hon. Alfred Sample, Judge, presiding.
    Messrs. Strawn & Patton, for appellant.
    Messrs. H. H, McDowell and A. E. Harding, for appellees.
   C. B. Smith, J.

This suit is in replevin and brought by appellee against appellant, charging him with wrongfully taking from appellee one coal office, one coal shed and one four-ton Howe scales. Vanscoy was a constable and took the property from appellees by virtue of an execution in his hands, issued upon a judgment rendered by a justice of the jeace against one John W. Eagle, in favor of Richard Evans, October 24, 1887, for $200. The execution was issued on the same day the judgment was rendered. Appellees bought the property, in good faith and for a valuable consideration November 3, 1885, long before the debt upon which judgment was taken had any existence. Appellant charges no fraud nor want of sufficient consideration in the transfer and sale from Eagle to appellees, nor does he claim he had any debt against Eagle at the time of the sale, nor that he afterward trusted Eagle on the supposition that Eagle owned the property in controversy. The only point he makes is that the delivery of the property to appellees by Eagle, was not sufficient to invest them with title as against creditors. The verdict and judgment was for appellee.

The facts about the delivery are that after appellee purchased the property and assumed the payment of two chattel mortgages, amounting to about $451, appellees and Eagle went to the coal sheds and coal office, and the keys were delivered to appellees and possession taken, and the keys thus ■delivered were within an hour again delivered to Eagle, who appears thereafter to have had possession for appellees.

Appellant now contends that this transfer is fraudulent, and that no sufficient evidence of delivery was shown to be valid against creditors. We think that the possession taken was all the law required, considering the nature of the property transferred and sold, and that it was sufficient to transfer the title to appellee.

Appellant complains that the instructions were erroneous but points out no specific error, nor does he state in which of the numerous instructions given, the error, whatever it is, may be found.

We have been unable to find any error in the instructions or the record, and the judgment will be affirmed.

Judgment affirmed.


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    Ferdinand Ribordy v. Alexis Pellachoud.

      Waters — Drainage over Another's Lands — Ditch—Instructions—Prescription.

    1. In an action to recover damages for closing a ditch and thereby flooding the plaintiff’s land, it is held: That an instruction touching the plaintiff’s right to drain his land into a natural channel or depression was defective in not stating the hypothesis that, in order to justify the plaintiff in throwing water upon the defendant’s land, there must be a natural channel, depression or outlet thereon; and that an instruction touching the question of prescription, was erroneous.
    2. One can not acquire a prescriptive right to flow another’s land by the acquiescence of the latter for “ several years."
    [Opinion filed December 8, 1888.]
    Appeal from the Circuit Court of Livingston County; the lion. R„ J. Pillsihjry, Judge, presiding.
    Messrs. MoIldüef & Torrance, for appellant.
    Messrs. Strawn & Patton, for appellee.
   C. B. Smith, J.

This is an action brought by appellee against appellant in ease, charging him with stopping up a ditch and thus throwing water back on his land and destroying his crops. It appears from the evidence that appellee owned forty acres of land lying directly west and adjacent to forty acres owned by appellant on the east. There was some wet land on appellee’s lot, and particularly near his west line was a low dejrression, much like a pond, which held move or less'water. It was all open prairie land and there seems to have been very slight.fall for this water in any direction, and there was a dispute on the trial as to which way this pond would naturally drain. In 1869 appellant plowed two furrows upon his land to within ten or fifteen rods of the east line of appellee’s land and run thence in a southerly direction to a low depression on his own land. The appellee also made a ditch across a part of his land to meet the ditch, or furrows, made on appellant’s land. Afterward appellant closed up the ditch on his line, or at least that is the claim made by appellee, and obstructed the flow of the water, which resulted in throwing it back on plaintiti’s premises and injuring his crops. The defendant pleaded the general issue and a trial was had resulting in a verdict for the plaintiff for §10. The court overruled a motion for a new trial and appellant brings the case here on appeal. The bill of exceptions contains over 300 pages of evidence. -Neither the importance of the questions nor the amount involved would seem to justify us in an elaborate review of the questions presented and we shall content ourselves with briefly disposing of them.

"We should not disturb the verdict because of any supposed conflict between it and the evidence, but we regret to be compelled to reverse the judgment because of erroneous instructions. "Whether there was a natural channel or outlet for water, or even a mere depression of land over appellant’s land, was a disputed fact. The first instruction given for plaintiff properly declared that he might drain his lands for agricultural purposes into natural channels or depressions, but did not hypothetically submit in the same instruction that, in order to justify throwing it on appellant’s land, there must be a natural channel, depression or outlet over his land through which it might pass. The instruction was bad in that respect and needed that modification, under the authority of Peck v. Harrington, 109 Ill. 611, and again reiterated in Totel v. Bonnefoy, 123 Ill. 653. And such seems to be required by Sec. 4, Farm Drainage Act of 1887.

"We do not think the objections to the second, third, fifth and sixth instructions given for appellee are well taken. But the seventh instruction given for appellee was clearly wrong. It told the jury that if appellant had dug a ditch on his own land and acquiesced in appellee’s use of it for “ several years” then he would have no right to fill it up, and if he did to the damage of appellee, then he would be liable. The effect of this instruction was to tell the jury that appellee might obtain á prescriptive right to flow his water over appellant’s land in less than twenty years. This is not the law. Deyo v. Ferris, 22 Ill. App. 154, and cases there cited. See also Totel v. Bonnefoy, supra.

For these errors the judgment is reversed and cause remanded.

Reversed, and remanded.