No. 1395.

#### Schaub v. Risser.

Mary E. Schaub, appellant, brought suit against R. G. Risser, appellee, and one Charles E. Dashiell, on two promissory notes, signed with firm name of Risser & Dashiell, one for $400, dated July 25, 1881, and due in thirty days, with eight per cent, interest, and the other for $500, dated September 13, 1881, and due one day after date, with eight per cent, interest. Both notes were made payable to Upton Schaub, husband of appellee, and were by him assigned to her on the 25th of November, 1881. There was no service on Dashiell; an 1 Risser pleaded the general issue, and denied joint liability under oath. The issues were tried before the court without a jury, and the finding and judgment were for appellee. The effect of the plea in bar denying joint liability, verified by affidavit, was to cast the • burden of proof on appellant. Practice Act, section 35 ; Kennedy v. Hall, 68 Ill. 165. The main question in issue was whether Upton Schaub, at the time he loaned the money and took the notes, knew it was not to be used in the business of the firm of Risser & Dashiell, but was to be used for the individual benefit of Dashiell in making purchases of stocks of goods at Norway and at Cambridge. Upon this point there was a sharp conflict in the testimony, and it was for the trial court to decide as to the credibility of the several witnesses, *634and the weight of the evidence. The testimony of Kisser and Dashiell would seem to make it clear that appellee should not be held liable on these notes. On the other hand, that of appellant and her husband would seem to establish the contrary. Upon the whole case,- and with due regard to all the surrounding circumstances, the court is inclined to think the finding of the circuit court was right.

Opinion filed February 20, 1886.

Judgment affirmed.

Attorneys, for appellant, Mr. O. G. Bartlett and Messrs. Kay & Euans ; for appellee, Mr. Tnos. P. Bonfield.

Opinion by

Baker, J.

Judge below, O. T. Reeves.