Opinion of the Court. And this enactment would seem to be a recognition and affirmance of this rule of public policy. It can not be said here, as in the case cited from 6 Cush., that there could be no violation of any confidence reposed in the wife by the husband, because he himself called her to testify. This witness was called by the executor, and although the representative of the husband as to his personal estate, he was not his representative to determine the fitness of calling upon the widow for a disclosure of matters occurring during the marriage. Although called for the executor, the witness might have been subjected to a cross-examination, and in this manner be brought into conflict with the interest of the estate. What was sought to be proved by the witness here, was a conversation between the defendant and the husband, before and in the presence of the witness, his wife, which is claimed to have amounted to an admission, by the defendant, of the account sued upon, and a promise on his part, within the period fixed by the statute of limitations, to pay it. We do not find from the authorities, that this rule of exclusion is confined to subjects which are confidential in their nature, and we think it should apply whenever the wife is called upon to disclose any matter, which came to her knowledge in consequence of the marriage relation. The conversation in question, though not between the witness and her husband, but between him and the defendant, yet, as it occurred between them in the presence and hearing of the wife, we must regard that she came to the knowledge of it by means of her situation as wife, that she could not properly be admitted to testify concerning it against the representative of her husband, nor should she be admitted to testify in his favor. As the adverse party in this case sues as the executor of a deceased person, the defendant, under the second section of the statute, was not allowed to testify in his own behalf. Opinion of the Court. If the witness, Mrs. Herr, had a direct interest in the event of the suit, then, under the third specified case in the second section, the defendant would be permitted to testify as to the same admission and conversation she testified to. But as it does not appear whether she had any such direct interest or not, the defendant would not be allowed to testify, under the statute, because of the death of Adam Herr, and the inability to have his testimony offered and considered with that of the defendant. But the wife of Adam Herr was so identified with him, that they essentially constituted but one party, and so far as the interests of the defendant are concerned, it would seem to matter little whether the testimony of the one or that of the other, was introduced against him. If, then, on the death of Adam Herr, his widow should be received to testify for his representative, as the defendant could not meet her testimony with his own, it would seem to be unfair towards him, and in violation of the spirit of the statute, which seems to intend, that there should be a mutuality and equality of opportunity in parties testifying the one against the other. When the statute had provided, that in a suit brought by the executor of a deceased person, the defendant should not be allowed to testify, and that no husband or wife should, by virtue of section one of the act, (which abolishes the disqualification of a witness, by reason of interest,) be rendered competent to testify for or against each other, as to any transaction or conversation occurring during the marriage, whether called as a witness during the existence of the marriage or after its dissolution, could it have been intended, that after the husband's death, his widow might be admitted to testify as to such transaction or conversation. Had such been the intent of the statute, would it not have provided, that in such case the defendant also should be allowed to testify, at least as to the same transaction or conversation? Syllabus. We are of opinion, the witness was not admissible, within the fair intent and meaning of this statute, as well as on the ground of public policy. The question argued, as to the admissibility of the witness from necessity, to prove the book of accounts, does not arise on the record, as the book does not appear to have been offered in evidence, and the husband himself appears to have made the entries. The most part of the account was apparently barred by the statute of limitations. The items within five years before suit brought, would not, as supposed, take the items beyond that time out of the statute. There were no mutual accounts here, the account was all on one side. Where all the items of an open unliquidated account are on one side, the last item which happens to be within six years, will not draw after it those that are of longer standing, so as to protect them from the operation of the statute of limitations. Kimball v. Brown, 7 Wend. 322; Thompson v. Reed, 48 Ill. 119. The testimony of Catharine Herr being all that was offered on the part of the plaintiff, for error in its admission the judgment of the court below is reversed and the cause remanded. Judgment reversed. ABRAHAM CHIDESTER et al. V. THE SPRINGFIELD & ILLINOIS SOUTH EASTERN 1. CONTRACT-of its certainty. A party executed a bond to a railroad company, covenanting therein to convey to the company, in consideration of the construction of their road, depot and station house, in a certain locality, the right of way through a certain tract of land belonging to him, "and Syllabus. Opinion of the Court. also seven acres of land in said section, tract and orchard, adjoining to said right of way on either side thereof:" Held, the instrument was not so uncertain in its terms as for that reason to be declared a nullity, and that the bond must have been understood by the parties as requiring a conveyance of the right of way wherever the company might choose to establish their track, and a strip of land of uniform width extending along the railway through the entire tract described in the bond, and having three and one half acres on each side of the right of way. 2. SPECIFIC PERFORMANCE-to what extent decreed. But the company having so constructed their road as to leave a tract containing but ninetenths of an acre on one side of the right of way, it was held, erroneous, in a suit for the specific performance of the contract, to decree to the company the nine tenths of an acre on that side, and six and one tenth acres on the other. The company were at liberty so to locate their road as to entitle them to seven acres, and not having chosen to do so, they can not claim an equivalent on one side of the right of way for what they have voluntarily abandoned on the other. 3. SAME of parol conditions with third persons. Upon its being contended that the bond was delivered by the obligor therein to a third person, to be held by him until the citizens of the town, in which the tract of land was situated, should raise and pay the sum of $350, as a further consideration for the conveyance, estimated to be one half the value of the land, which was never done, but of which condition the company had no knowledge, it was held, the bond having been delivered to the company, they, having acted in good faith upon its terms, had the right to insist upon their performance without reference to any parol conditions or agreements made with other parties, and of which they were ignorant. APPEAL from the Circuit Court of Clay county; the Hon. R. S. CANBY, Judge, presiding. Messrs. COPE & BOYLES, for the appellants. Mr. R. P. HANNA and Mr. R. D. ADAMS, for the appellee. Mr. CHIEF JUSTICE LAWRENCE delivered the opinion of the Court: In May, 1869, Kinnaman executed a bond, by which he covenanted to convey to the appellee, in consideration of the construction of its road, depot and station house, in a certain locality, the right of way through a certain tract of land belonging to him, "and also seven acres of land in said section, tract and orchard, adjoining to said right of way on Opinion of the Court. either side thereof." The railway company has laid its track and erected its buildings as required by the bond, and now demands of the heirs of Kinnaman a conveyance of the land. It is insisted by them, that the bond was delivered by their father to a third person, to be held by him until the citizens of the town should raise and pay to Kinnaman $350, estimated to be one half the value of the land, and that this was never done. The proof upon this point is not very satisfactory, but even if it were positive, it would be immaterial, for it is not pretended the railway company had any knowledge of such condition. The bond was delivered to it, and it acted in good faith upon its terms, and has the right to insist upon their performance without reference to any parol conditions or agreements made with other parties, and of which it was ignorant. The only difficulty in the case, arises from the uncertainty in the description of the seven acres. Courts, however, are properly loth to pronounce an instrument a nullity, merely because of the obscurity of its terms, and we think the one before us is sufficiently certain to be carried into effect. The word "either" is sometimes used in the sense of one or the other of several things, and sometimes in the sense of one and the other. Its use in this last sense is not infrequent. Thus, it is common to say on either hand, on either side, meaning, thereby, on each hand or side. Again, it is common to describe land, in conveyances, as a certain number of acres off a certain side of a particular tract, and such descriptions are always held good. They are held to describe a strip of land of sufficient width to make the requisite number of acres, and of uniform width throughout. Applying this rule to the present case, we are of opinion that the bond was understood by the parties, as requiring a conveyance of the right of way wherever the company might choose to establish its track, and a strip of land, of uniform width, extending along the railway through the entire tract described in the bond, and having three and a half acres on |