#### John M. Wolf, Appellee, v. Horton Ellison, Appellant.

(Not to be reported in full.)

Abstract of the Decision. .

1. Bills and notes, § 440 * —when evidence sufficient to sustain verdict. In an action on a promissory note evidence held sufficient to justify a finding that the note was not materially altered after it was executed, that it was executed by the defendant and that neither it nor the note for which it was given, as a renewal, had been paid.

2. Bills and notes, § 426*—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit on a promissory note had not been commenced until more than six years after the date of maturity, held that evidence as to the ability of the maker to pay it.during that period was inadmissible, since no presumption of payment arises from delay, amounting to less than the period limited by the statute of limitations, in proceeding to collect a debt of a living debtor.

3. Bills and notes, § 426*.—when evidence as to ability of maker to pay unpaid note before outlawed inadmissible. Where suit was *139not brought on a promissory note until more than six years after the date of its maturity, evidence of the maker’s ability to pay it during that period held inadmissible, though the plaintiff had testified that the bringing of a suit at an earlier date would have been unavailing, since the reasons for failure to make an earlier attempt to collect was immaterial.

*138Appeal from the Circuit Court of Shelby county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the October term, 1915.

Affirmed.

Opinion filed April 21, 1916.

Statement of the Case.

Action by John M. Wolf, plaintiff, against Morton Ellison, defendant, on a promissory note. From a judgment for plaintiff, defendant appeals.

Emery Andrews and Raymond G. Real, for appellant.

Whitaker, Ward & Pugh, for appellee.

*

See Illinois Notes Digest, Vols, XI to XV, anti Cumulative Quarterly, same topic and sectipn number.

*

See Illinois Notes Digest, Vols. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Presiding Justice Eldredge

delivered the opinion of the court.

*1394. Appear and error, § 1088 * —necessity that brief refer to pages of abstract where rulings complained of appear. Where no reference is made in the brief to the pages of the abstract on which alleged erroneous rulings appear, they will not be considered on appeal.

5. Instructions, § 120*—when properly refused as not conforming to evidence. An instruction that the jury, in determining what facts were proven, should consider all the evidence before them, together with all the circumstances of the transaction in question, held properly refused, in that it did not limit the circumstances to be considered to those shown by the evidence.

6. Evidence, § 457*—when testimony at former trial not competent. Testimony of a present witness given on a trial is not competent evidence on a subsequent trial.

7. New trial, § 61*—when properly denied. Refusal to grant a new trial on the ground that the defendant was taken by surprise because the plaintiff testified differently than he did on a former trial, and that the defendant did not have time to obtain a transcript of such former testimony for use in impeachment held proper.