Statement of the case. property and the passing of a title, when nothing remains to be done but for the purchaser to take possession. 11. But as to creditors and subsequent bona fide purchasers, a delivery is indispensable to complete the sale. 12. SALES OF PERSONAL PROPERTY-presumption as to their good faith. It may be that where all the elements of a valid sale of personal property exist, it will be presumed to have been made in good faith; but such would not be the presumption, when, in proving what is claimed to be a sale, some essential requirement is wanting. 13. As where a sale of personal property is made without a delivery of pos session to the purchaser, as to creditors and subsequent bona fide purchasers, such a sale is presumed to have been made in bad faith. 14. MEASURE OF DAMAGES-as respects rate of interest in suit by assignee against assignor. In a suit by the assignee against the assignor of a note, the plaintiff should not recover more than he could have collected from the maker had he been solvent. 15. So where the assignee of a note drawing interest at ten per cent. reduces his debt to a judgment against the maker, and, failing to make the money, sues his assignor, the measure of his recovery will be, not the face of the note with ten per cent. interest, but only the amount of the judgment with interest thereon at six per cent. from the time it was rendered, and the assignee's costs in obtaining that judgment. APPEAL from the Circuit Court of Perry county; the Hon. JOHN H. MULKEY, Judge, presiding. On the 25th day of February, 1865, Aaron A. Frew commenced his action of assumpsit in the court below against John W. Corgan, alleging, as the ground of the action, that Mason F. Woods, on the 6th day of December, 1861, made his note to C. P. Christian for $500, payable on or before the 20th day of May, 1862, with ten per cent. interest from due until paid; that Christian indorsed the note to John W. Corgan, the defendant, and that Corgan indorsed it to the plaintiff, Frew. The plaintiff avers that Woods, the maker of the note, was insolvent from the maturity of the note until the commencement of this suit, so that the same could not have been collected by due process of law. The defendant pleaded the general issue. On the trial, the plaintiff offered in evidence the following instrument: Statement of the case. "$500. WAVERLY, December 6, 1361. "On or before the 20th of next May, I promise to pay C. P. Christian, or his order, five hundred for value received of him (with ten per cent. after due). Indorsed: "Pay to John W. Corgan. C. P. CHRISTIAN. Pay to A. A. Frew. J. W. CORGAN." M. F. WOODS." The defendant objected to the admission of the instrument in evidence, but the court overruled the objection and allowed it to be read to the jury, to which exception was taken. The plaintiff then introduced in evidence the record of a judgment in his favor, rendered at the March Term, 1863, of the Circuit Court of Morgan county, against Woods, the maker, upon confession under a warrant of attorney, executed by the latter, for $542.11, upon the instrument above described. The plaintiff offered to read the deposition of Woods, the maker of the instrument mentioned, by whom it was proposed to prove his insolvency, and the fact that he had sold his real estate as well as his personal property. The defendant objected to the reading of the deposition, and especially so much of the answers of the witness as related to the sale of his real estate. But the court allowed the deposition to be read, and the defendant excepted. Woods testifies in his deposition, in detail, in reference to the sale of his property, a portion of which, one hundred and forty head of cattle, he stated he sold to Chesnut & Dubois in June, 1862. It is unnecessary, in the view in which the case is considered by the court, to notice the evidence more particularly. Upon the evidence being closed, the court instructed the jury for the plaintiff as follows: 1. When the testimony of a witness is fair, not unreasonable, and consistent with itself, and the witness has not been impeached by any of the modes recognized by the law, a jury has no right to disregard the testimony of such witness. 3-39TH ILL Statement of the case. 2. If the jury believe from the evidence that defendant assigned the note described in the declaration to the plaintiff, and that when the note fell due the maker was insolvent and remained so up to the time of the commencement of this suit, and that the amount of the note could not have been made out of the maker by a judgment and execution they will find for plaintiff. 3. The presumption of law is that any sale of property is made in good faith, and that unless the defendant in this case has proved by sufficient evidence, or it otherwise appears from the testimony that the sale of the property of Woods was fraudulent, and that Woods was the owner of property, real or personal, subject to execution out of which the note in this case could have been made, they must find for the plaintiff. To the giving of these instructions, the defendant excepted. The following were given for the defendant: 1. That although the jury may believe from the evidence that Woods sold to Chesnut & Dubois the one hundred and forty head of cattle in June, 1862, and that the cattle at that time were at a different place and that Woods never actually delivered the possession of them to Chesnut & Dubois then the sale of these cattle would, in law, be fraudulent and void as against the execution creditors of Woods. 2. If the jury believe from the evidence that Mason F. Woods had property in his possession, subject to execution at any time after the plaintiff might have obtained a judgment and before the commencement of this suit, sufficient in value to have paid the debt in question, the verdict should be for defendant. 3. When one sells personal property to another and does not deliver possession, but retains it, then the property would be subject to levy under an execution against the seller so long as it remains in his possession, such a sale being, in law, fraudulent and void as against subsequent purchasers and execution creditors. 4. The possession of personal property is prima facie evidence of ownership; and in this case if you believe from the evidence that Woods was in possession of personal property Statement of the case. sufficient to have paid his debt then it was the duty of plaintiff to levy on this property and make an effort to collect his debt, and though Woods might have asserted that it was not his property it would still be the duty of plaintiff to levy upon it and test the question of ownership; and if the evidence shows that plaintiff neglected to do so and has failed to overcome or remove the presumption arising from Woods' possession by counter testimony, the law is with the defendant and your verdict should be accordingly. The court instructs the jury that in all sales of personal property a visible and actual possession of the property sold is necessary to the validity of the sale, and that until the possession is actually changed from the seller to the buyer, the property may be levied upon under an execution against the seller, and in this case, though you may believe that Woods sold his personal property to Chesnut & Dubois, or to his son James J. Woods, and that the property remained in the possession of Woods until a time when the plaintiff might have obtained judgment and an execution thereon against Woods, then it was the duty of the plaintiff to have levied upon the property; and if the property was sufficient in value to have paid the debt in question, then the jury should find for the defendant. The jury found for plaintiff $666.66. Motions for new trial, and in arrest of judgment overruled. The defendant thereupon took this appeal. The questions arising under the assignment of errors, are, first, whether the instrument executed by Woods is a promissory note; second, whether Woods, the maker of that instrument, was a competent witness for the plaintiff as against the assignor; third, whether the court below laid down the rule correctly in regard to the modes of impeaching a witness; fourth, whether the true rule was announced in respect to the necessity for a delivery of personal property to a purchaser to protect him against creditors. and subsequent purchasers; fifth, what was the measure of damages on the recovery of the plaintiff, with respect to the rate of interest; sixth, whether it was competent to prove by Woods that he has sold and conveyed his real estate? Brief for the Appellant. Brief for the Appellee. Opinion of the Court. Mr. GEORGE W. WALL, for the appellant, contended that the instrument executed by Woods was not a promissory note, but was void for uncertainty, citing Norwich Bank v. Hyde, 13 Conn. 282; 1 Parsons on Contracts, 28. It was not competent to prove by Woods that he had conveyed away his land; his deed was the best evidence of that fact, if it existed. 1 Greenl. Ev. 82; Chalmers v. Moore, 22 Ill. 362. The jury calculated interest at ten per cent. from the maturity of the paper up to the trial. The instrument was merged in the judgment on the 24th of March, 1863, and the plaintiff should only recover six per cent. on that amount. He should not recover more from the defendant than he could have recovered from the maker. Mr. B. B. SMITH, for the appellee. Woods, the maker of the note, was a competent witness as between the assignor and assignee; he had no interest in the suit. 1 Greenl. Ev. §§ 384, 389, 390. Or, if interested at all, his interest was equally balanced, and he was competent. Id. § 420; 1 Phil. Ev. 87. The true rule was laid down in the first instruction given for the plaintiff below, in respect to the credit a jury is bound to give to the testimony of a witness who is unimpeached. Robertson v. Dodge, 28 Ill. 161. Mr. CHIEF JUSTICE WALKER delivered the opinion of the Court: It is insisted, that the instrument read in evidence is not a promissory note, and consequently was not assignable, and was therefore inadmissible in evidence to fix the amount of the recovery. It fails to state in the body of the instrument whether it is for five hundred dollars, or for that number of commodities. The check mark, however, in the margin is for "$500," but in the body it is written "five hundred" without |