court instructs the jury that clearer and more convincing proof of good faith is required where the parties to a bill of sale are near relations than where they are strangers." The automobile was sold by Charles A. Coey to Harris E. Hurlbut for the sum of $2,500. Hurlbut paid a part of the purchase money in cash and gave his two promissory notes, one for the sum of $500, due June 16, 1904, and one for the sum of $505, due July 2, 1904, with interest at 6 per cent. per annum, for the balance of the purchase price of said automobile, which promissory notes were secured by a chattel mortgage upon the automobile, and which mortgage provided that, in case said automobile should be levied upon by any writ, the mortgagee might declare the indebtedness secured by said chattel mortgage to be due and payable, and take possession of said automobile and sell the same at public or private sale, to make the amount of the debt secured by said chattel mortgage. The automobile was seized by the sheriff of Cook county upon a writ of attachment sued out by Hester W. Brown in one of the courts of record in said county against said Harris E. Hurlbut, whereupon said Charles A. Coey replevied the same from the sheriff of Cook county and thereafter sold the same at private sale to the appellee, who was a brotherin-law of Hurlbut, for the sum of $1,625, out of which the claim of Hester W. Brown and the mortgage notes of Coey were paid, and the balance, about $50, was paid to Harris E. Hurlbut and the automobile was delivered to the appellee, who placed it in a garage in the city of Chicago, and after a time it was taken, by the direction of the appellee, to his home in the state of Indiana, where it remained for some time, when it was returned, under his direction, to the city of Chicago, and placed in the hands of a dealer in automobiles for sale, when it was seized by the appellant, as a constable, upon an execution and writ of attachment which came into his hands against Harris E. Hurlbut subsequent to the sale of the automobile to the appellee.

The only contested question of fact upon the trial of the case below was whether there was such a delivery of said automobile to the appellee at the time he purchased the same from Coey as would pass title to the appellee as against the creditors of Hurlbut. The jury found upon that question in favor of the appellee, and the evidence found in this record fairly tends to support such finding, and the judgment of the Appellate Court upon that question is binding upon this court. As to the first contention of the appellant, therefore, he is concluded by the judgment of the Appellate Court. In the cases of Martin v. Duncan, 156 Ill. 274, 41 N. E. 43, and Clark v. IIarper, 215 Il. 24, 74 N. E. 61, there is language found which corresponds substantially with that found in appellant's seventeenth instruction. Those cases, however,

are so different from the case at bar upon the facts that we do not think what was said in those cases applies with much, if any, force to the case at bar. We are of the opinion, therefore, that the refusal of the court to give said seventeenth instruction offered on behalf of the appellant, under the facts of this case, did not constitute reversible error. The facts in this case were not complicated, and the appellant, so far as we can see, had a fair and impartial trial before the jury, and the court fairly instructed the jury as to the law of the case.

The judgment of the Appellate Court will therefore be affirmed. Judgment affirmed.

(231 Ill. 82)

SPENCER v. ETNA INDEMNITY CO. (Supreme Court of Illinois. Dec. 17, 1907.) · 1. PLEADING-RULINGS ON DEMURRER-OBJECTIONS-WAIVER.

A defendant filing an amended plea in abatement waives the right to question the ruling of the court holding the original plea insufficient.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 39, Pleading, §§ 1403-1406.]

2. APPEAL-REVIEW-ASSIGNMENT OF CROSS

ERRORS.

Where defendant appeals from a judgment against him on sustaining a demurrer to his amended plea in abatement, plaintiff, without assigning cross-errors, is entitled to raise the question that the court erred in granting leave to amend the plea.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3053.]

3. PLEADING-PLEA IN ABATEMENT-AMEND

MENT.

The general rule (Hurd's Rev. St. 1905, c. 7. § 11) that pleas in abatement are not amendable is subject to the exception that pleas in abatement to the jurisdiction of the court of the person are amendable; they being meritorious pleas necessary to the protection of a substantial right granted by statute. 4. SAME.

A defendant filing a plea in abatement alleging a prior suit in a foreign jurisdiction is not entitled to file an amendment thereto, and, where the court erroneously allowed an amendment, a judgment refusing to treat it as valid was correct, though it was reached through an erroneous process of reasoning.

5. APPEAL--BONDS-ACTION-REVIEW.

Where an action on an appeal bond is brought by the obligee therein for the use of a third person and judgment is recovered against the surety, the surety, who, after the death of the obligee, appeals properly makes the appeal bond to the third person as authorized by Hurd's Rev. St. 1905, c. 1. §§ 23. 24, relating to suits for the use of another, etc., though no order that the bond be made to the third person is entered.

Appeal from Appellate Court, First District, on Appeal from Circuit Court, Cook County; Thomas G. Windes, Judge.

Action by Julia M. Cooney, for the use of Charles C. Spencer, against the Etna Indemnity Company. Prosecuted after the death of Julia M. Cooney by Charles C. Spencer. From a judgment for plaintiff, defendant appeals. Affirmed.

Judah, Willard, Wolf & Reichmann, for appellant. Charles C. Spencer, in pro. per.

FARMER, J. Julia M. Cooney recovered a judgment against the United States Wringer Company in the superior court of Cook county for $5,210. The defendant in that case appealed to the Appellate Court, where the judgment of the superior court was affirmed, and from the judgment of the Appellate Court it prosecuted an appeal to this court. The judgment of the Appellate Court was affirmed by this court (214 Ill. 520), and, not having been paid, plaintiff in said judgment began suit on the appeal bond given in the Appellate Court upon allowance of the appeal to this court. The suit was begun and declaration filed on May 5, 1905. On the 16th of May, 1905, the declaration was amended by inserting after the name of Julia M. Cooney, plaintiff, wherever it occurred, the words, "for the use of Charles C. Spencer." Service was had only upon appellant, the Etna Indemnity Company, the surety on the bond. On the 22d of May appellant pleaded in abatement that on the same day the suit was begun, but prior to its commencement, the United States Wringer Company instituted an attachment suit against Julia M. Cooney in the common pleas court in Franklin county, Ohio, that appellant was made defendant to said suit as garnishee, and that it was sought in said suit to attach the same indebtedness as that for which the action to which the plea was filed was brought. The plea was verified by an affidavit, in which the affiant stated the affidavit was true "to the best of his knowledge and belief." On the 27th of May appellant, by leave of court, filed an amended plea nunc pro tunc as of May 22d. The amended plea was the same as the original plea, except that the affidavit stated the plea was "true in substance and in fact." On the same day this amended plea was filed appellee moved to strike both the original and amended pleas from the files. This motion was overruled and appellee excepted. Subsequently appellee demurred to the plea and the court sustained the demurrer. Appellant asked and was given leave to amend, and on the 13th of June filed an amended plea setting up the same matters, but more in detail, set out in the plea to which the demurrer was sustained. Appellee moved to strike this plea from the files, but the court overruled the motion, and appellee excepted. Afterwards the appellee demurred to the amended plea. The court sustained the demurrer, and, appellant electing to stand by its plea, judgment was entered against it for $6,000 debt and $5,938.82 damages. This judgment was rendered February 13, 1906, and Julia M. Cooney died February 23, 1906. Thereafter, and within the time allowed for filing an appeal bond, and before the same was filed, appellee suggested the death of Julia M. Cooney of record. Appellant thereupon moved for a rule upon appel

lee to show by what authority he had used the name of Julia M. Cooney as the nominal plaintiff. This motion was denied, and the appeal bond made to appellee, the beneficial plaintiff. Appellant filed its bond and perfected its appeal from the judgment of the circuit court to the Appellate Court. The Appellate Court affirmed the judgment of the circuit court, and from the judgment of affirmance appellant has prosecuted this appeal to this court.

Appellant has filed an able and exhaustive brief in support of the proposition that the matter set up in its amended plea is proper to be pleaded in abatement, and that the court erred in sustaining the demurrer thereto. We do not think the merits of that question necessary to a determination of this case. It is not denied that the first plea filed was defective because improperly verified. Appellant's counsel say in their brief: "The principal questions upon this appeal relate to the sufficiency of the amended plea in abatement of defendant, the Etna Indemnity Company, and to the propriety of the rulings of the court with reference to the appeal bond." By obtaining leave to file, and filing, au amended plea, appellant waived the right to question the correctness of the ruling of the court in holding the former plea insufficient.

The question then arises whether the law authorized the filing of the amended plea. Appellee moved the court to strike the plea from the files, and on its motion being overruled filed a demurrer, which was sustained. If the plea did not belong to the class of socalled pleas in abatement, which are amendable, leave should not have been granted to file it, or the court should afterwards have allowed the motion to strike it from the files. Neither of these methods was resorted to by the court, but the plea was disposed of on demurrer.

Appellant insists appellee's contention that the trial court erred in granting leave to amend the plea is not presented by this record for consideration, for the reason that appellee has assigned no cross-errors. On this question we agree with the Appellate Court. That court said: "We are unable to concur in the suggestion of appellant's counsel that this question is not before us because crosserrors are not assigned. Appellant is here asking us to set aside a judgment against it. If the judgment is correct upon the record, it must stand, and it is no reason for setting it aside that the trial court, before reaching its final judgment, may have erred in appellant's favor and erroneously denied a motion to strike out the amended plea. In Indianapolis, Peru & Chicago Railway Co. v. Summers, 28 Ind. 521-523, where the lower court had sustained a demurrer to a plea in abatement, it was said: "The proper practice where the plea is filed without being verified would be to move to reject or strike it from the record, but as the proper result was reached in the case at bar the case should

not be reversed because of the error in the mode.'" The rule is that pleas in abatement are not amendable. Hurd's Rev. St. 1905, c. 7, § 11; Bacon v. Schepflin, 185 Ill. 122, 56 N. E. 1123; Cook v. Yarwood, 41 Ill. 115; Trinder v. Durant, 5 Wend. (N. Y.) 73; 1 Chitty's Pl. 465; 1 Tidd's Pr. 8 638. To this general rule an exception is made in the case of pleas in abatement to the jurisdiction of the court of the person. A plea of this character is held to be not strictly a plea in abatement, but a meritorious plea necessary to the protection of a substantial right granted by statute, and in such case the plea is amendable. Safford v. Sangamo Ins. Co., 88 Ill. 296; Drake v. Drake, 83 Ill. 526; Humphrey v. Phillips, 57 Ill. 132; Midland Pacific Railway Co. v. McDermid, 91 Ill. 170. Appellant had no right to file the amended plea, and should not have been granted leave to do so. It had no right to have the plea considered as setting up any defense to the action, and the judgment of the court in refusing to treat it as a valid plea was correct, notwithstanding that judgment may have been reached through an erroneous process of reasoning.

It is further insisted by appellant that the appeal bond in this case should have named the executors, administrators, or heirs of Julia M. Cooney as obligees, instead of appellant, the beneficial plaintiff. The record shows that, when the death of Julia M. Cooney was suggested in the trial court, counsel for appellant made inquiry of the court as to who ought to be mentioned in the appeal bond as obligee. After some discussion 'between court and counsel, the court gave it as his opinion that the bond should be made to the appellee, but no order was entered to that effect, and thereafter appellant filed the bond naming appellee as the obligee. If this question were properly before us, which is very doubtful, we think, under the statute and former decisions of this court, the appeal bond was properly made to appellee. Hurd's Rev. St. 1905, c. 1, §§ 23, 24; Foreman Shoe Co. v. Lewis, 191 Ill. 155. 60 N. E. 971.

The judgment of the Appellate Court is affirmed.

Judgment affirmed.

(231 Ill. 86)

BROADWELL SPECIAL DRAINAGE DIST. NO. 1. v. LAWRENCE.

(Supreme Court of Illinois. Dec. 17, 1907.) 1. APPEAL-REVIEW-DECISIONS OF INTERMEDIATE COURTS-QUESTIONS OF FACT.

In a chancery case, the facts are subject to review in the Supreme Court, notwithstanding the affirmance of the decree below by the Appellate Court.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 4324.]

2. DRAINS USE OF DRAIN PROCEEDINGS — EVIDENCE.

Evidence held to show that a drain constructed by defendant conveyed water from a ditch on his farm into a drainage district tile.

5. SAME

DISCHARGE OF SURFACE WATERRIGHT OF DOMINANT OWNER.

Under Farm Drainage Act, § 4 (Hurd's Rev. St. 1905, c. 42, § 78), empowering the owner to drain his land, and also at common law, the owner of a dominant estate may by ditches or drains collect the surface water falling upon his estate, and thereby conduct it into a natural water channel, even if by so doing the quantity of water cast upon the servient estate is thereby increased.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 48, Waters and Water Courses, §§ 131-134.] 6. SAME-EASEMENTS TERMINATION - PRE

SCRIPTION.

Where the owner of the dominant estate, with the acquiescence of the servient owner, diverts surface water from its natural course and establishes an artificial channel, through which the water has passed uninterruptedly for more than 20 years, mutual and reciprocal rights are acquired by prescription, exempting the dominant estate from restoring the water to its original course, and forever releasing the servient estate from the dominant estate's easement to drain its surface water upon the servient estate through the old channel, and the dominant owner cannot, in effect, reclaim his easement by collecting the waters at another point in the artificial channel and discharging them upon the servient estate through a tile drain.

--

7. SAME RUNNING STREAMS AND SURFACE WATER-RIGHTS OF DOMINANT AND SERVIENT OWNERS.

In so far as the relative rights of the dominant and servient owners are concerned, there is no difference between running streams and surface water which flows in a regular channel only at stated periods.

8. DRAINS-DRAINAGE DISTRICTS RIGHT TO CONNECT WITH DRAIN-OUTLYING LAND.

Farm Drainage Act, § 4 (Hurd's Rev. St. 1905, c. 42, § 78), permits an owner of land to drain it in the course of natural drainage, and to discharge the water into a natural water course, or into a natural depression, whereby it will be carried to a natural water course, etc. Drainage Law, § 42 (Hurd's Rev. St. 1905, c. 42. § 117), permits the owner of land outside the district to connect with the drains of a district on certain conditions as to assessments, etc. Held, that this section, construed in connection with section 4 of the Farm Drainage Act, does not contemplate that the right should be exercised by owners of land outside the district, where the natural drainage of their land is not in the direction of the drains with which the proposed connection is to be made, or where, though the natural drainages is in that direction. the right to return to the natural drainage course has been lost to the owner by diverting it, especially where the connection by the one landowner would drain other outlying land not within the jurisdiction of the district and not subject to its burdens.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 17, Drains, § 66.]

Appeal from Appellate Court, Third Dis trict, on Appeal from Circuit Court, Logan County; F. M. Harris, Judge. ·

Bill by the Broadwell Special Drainage District No. 1 against Arthur Lawrence for an injunction. From a judgment of the Appellate Court for the Third District affirming a decree for complainant, defendant appeals. Affirmed.

This is a bill brought by the Broadwell Drainage District No. 1 against Arthur Lawrence, in the circuit court of Logan county, to restrain Lawrence from connecting certain lands belonging to him with the tile drains of the district, and to compel him to discontinue a certain tile drain heretofore put in by said Lawrence connecting the south 80 acres of his lands with the drainage tile of the district. The circuit court, upon a hearing, granted the prayer of the bill, and its decree has been affirmed by the Appellate Court for the Third District.

The following map will aid in obtaining an understanding of the questions involved:

The territory embraced in the drainage district is shaded on the map. The dark line extending from "A" to "B" is the main drain of the district. This is a tile drain 12 inches in diameter at the outlet, "A," and eight inches at the initial point, "B." Appellant owns 240 acres of land, the south 80 acres of which is south of and just outside of the drainage district, designated by the letter "D" on the map. The other 160 acres lies immediately north of the south 80, and is within the drainage district. The said drainage district was organized in 1884, and the main tile, "AB," is large enough to carry all the water coming into it from the lands embraced in the

district as originally organized. In 1904 appellant put in a tile, commencing about 1,000 feet south of the north line of his south 80, and extended it north to a pond shown on the map; thence in an easterly curve for something over one-half mile to point "J"; thence north, where he connected it with the district tile at letters "L C," about the center of the southeast quarter of section 35. After appellant put in this line of tile from "D" to "L C," the diameter of which was the same as the district tile with which it was connected, the carrying capacity of the district tile was overtaxed, and the result is that the head-on force of the water in appellant's tile causes the water to back up in the drainage tile toward point "M" and to overflow the lands in the district toward point "A." The increased quantity of water thus brought to the drainage district tile impedes the work of the tile, and causes the water to remain a much longer time, after a freshet, on all the lands of the district than before appellant put in the connection. If appellant's tile is to be continued in its present condition, it will be necessary for the drainage district to enlarge its drain so as to care for the increased quantity of water brought to it by appellant's tile.

Prior to 1874 there was a water course, known in the record as "Lawrence slough," which flowed down from the southeast, passing about point "F," thence in a northeasterly course, and entered appellant's south 80acre tract near the northeast corner. From this point this slough flowed northeasterly into a lake or pond called "Lawrence Lake," which is shown on the map northeast of the letter "G." The Lawrence slough in its natural condition was quite an extensive swale, and conveyed a large quantity of water, especially after heavy rains. This slough overflowed at times, and its waters spread over the low lands near it, so that at times of excessive rainfall it was from 100 to 200 yards wide. The effect of this slough flowing onto appellant's 80 acres just north of the south 80 was to make it very wet and marshy, and much of it was unfit for cultivation. Some time prior to 1874-probably the year before -the appellant's father, who owned and controlled the lands which appellant now owns, constructed an artificial ditch from the east toward the west, which is shown on the map near the north line of the south 80-acre tract. The ditch is called the "Lawrence ditch." Its course on appellant's land is from east to west. At the east end it connects with the old channel of Lawrence slough, and the purpose in making it was to divert the water of Lawrence slough and have it to pass through this ditch west, and thence northwest to an: outlet. After this ditch was constructed, the old channel of Lawrence slough was abandoned north of the connection with the ditch. The dirt removed from this ditch was banked up on the north side thereof, forming a,