stances as evince plain indications of a heart regardless of social duties and fatally bent on mischief; hence malice is implied from any deliberate and cruel act against another, however sudden, which shows an abandoned and malignant heart."

It is said that this instruction was held erroneous by this court in the case of Marzen v. People, 173 Ill. 43. This is a misapprehension on the part of plaintiff in error. The instruction in the Marzen case is not similar to the instruction complained of in the case at bar. In the Marzen case the instruction advised the jury that the words "malice aforethought" did not mean deliberation, and this court held that it is the deliberation with which an act is performed that gives it character; that it is the opposite of an act performed in uncontrollable passion, which prevents the deliberation or cool reflection in forming a purpose. There is nothing said in the Marzen case that condemns instruction No. 10. On the contrary, the reasoning of the court there supports the instruction now under consideration. There was evidence in the record, if the jury believed the testimony of Myrtle Mercer, of express malice, but rejecting her testimony as to the threat made by plaintiff in error, there is evidence, if the testimony of the other eye-witnesses is accepted, that furnishes a basis for implied. malice. There was no error in giving either the third or tenth instruction. No other instructions are complained of.

The final complaint of the plaintiff in error is, that the court erred in overruling the motion for a new trial on the ground that the verdict is not supported by the evidence. The substance of the evidence has already been stated. The point made by plaintiff in error, it will be seen, resolves itself into a question of the credibility of the witnesses. If the witness Conrad and the three girls who corroborate him speak the truth, then plaintiff in error is clearly proven guilty. The plaintiff in error, realizing that

his conviction would necessarily follow if the jury believed the evidence of these eye-witnesses, sought to contradict, impeach and discredit them. It must be conceded, we think, that the evidence and circumstances introduced tend to impeach the credibility of these witnesses to some extent, yet there appears to be no motive why they would desire to falsely and wrongfully accuse plaintiff in error of so serious an offense as their evidence establishes against him.

Finding no reversible error in this record the judgment of the circuit court of Wabash county is affirmed.

Judgment affirmed.

G. WILSE TILTON, Plaintiff in Error, vs. FAIRMOUNT LODGE No. 590, A. F. AND A. M., Defendant in Error.

Opinion filed April 21, 1910.

I. MISTAKE equity cannot reform instrument for a mistake of law. Where the terms of a written instrument are used by the parties deliberately and knowingly there can be no relief in equity by way of reforming the contract, even though the legal effect of the terms used is to produce an instrument different in its legal meaning from the one intended.

2. SAME when equity will not reform lease to make it convey fee. Where a lodge agrees with the owner of a building to erect a second story thereon for a lodge room upon the understanding of both parties that the owner will convey the fee simple title to the second story to the lodge, but instead of a deed a ninety-nine year lease is entered into in the belief of both parties that their intention could be carried out legally in that way only, a court of equity cannot reform the lease so as to make it a conveyance of the fee simple title.

FARMER, C. J., and CARTWRIGHT, J., dissenting.

WRIT OF ERROR to the Appellate Court for the Third District;-heard in that court on appeal from the Circuit Court of Vermilion county; the Hon. JAMES W. CRAIG, Judge, presiding.

O. M. JONES, and H. M. STEELY, for plaintiff in error.

REARICK & MEEKS, for defendant in error.

Mr. JUSTICE COOKE delivered the opinion of the court:

This is a bill filed by plaintiff in error, G. W. Tilton, against the defendant in error, Fairmount Lodge No. 590, A.F. and A.M., to reform a written instrument in the form of a lease. In the year 1883 plaintiff in error, who was the owner of a lot in the village of Fairmount, was about to repair a one-story frame store building situated thereon. The defendant in error, desiring at that time to secure a lodge room, entered into an agreement with plaintiff in error whereby it was allowed to construct a second story upon the plaintiff in error's store building, together with a stairway leading thereto. The cost of building this second story was to be borne by the lodge, and under the agreement the lodge was to become the owner thereof. No amount was agreed upon to be paid plaintiff in error for this right or privilege and nothing was, in fact, paid. Pursuant to this agreement the building was so constructed and the lodge paid the actual cost of the construction of the additional story and the stairway. When the parties to the agreement, being plaintiff in error and the trustees of the lodge, were ready to arrange for the necessary conveyance from plaintiff in error to the lodge, of the second story of the building, the question arose as to what kind of instrument was necessary to convey the property. One McAllister, a member of the building committee which had acted on behalf of the lodge, informed plaintiff in error and the trustees of the lodge that he had been advised that the only way in which the fee simple title to the second story could be conveyed to the defendant in error was by means of a ninety-nine year lease. An instrument in the form of a lease to the lodge for that term, of the second story of this building and the stairway leading thereto, was

executed by plaintiff in error and the trustees of the lodge, the consideration stated therein being the sum of $860, the amount of the actual cost of the second story and the stairway. The character of the instrument was discussed by the parties to it, and while it was the intention of every one concerned that the fee simple title to the second story of the building and the stairway was to be conveyed to the lodge, and it was their belief that this was done by the instrument executed, all the parties agreed to the form of the instrument as it was drawn, under the belief, and acting upon the advice of McAllister, that that was the only way in which the result desired could be accomplished. Under this lease the lodge entered into possession and control of the property described therein and thereafter kept the same in repair and insured against loss by fire and in all respects treated it as its absolute property until the year 1904, at which time the lodge, by its officers, for the first time asserted the claim that it was the duty of plaintiff in error, under the instrument in question as written, to maintain the entire building and keep the same in repair. The plaintiff in error refused to do this, whereupon he was served with notice to make certain repairs to the roof and chimney, and upon his failing to do this the same were made and paid for by defendant in error, which then instituted a suit in assumpsit in the circuit court, predicated upon the lease, for the recovery of the cost of the repairs. A demurrer was sustained to the declaration in this suit and judgment entered against the lodge in bar of the action. Upon appeal to the Appellate Court for the Third District that judgment was reversed and the cause remanded, with directions to the circuit court to overrule the demurrer. Upon a re-instatement of that cause plaintiff in error filed this bill, praying that the instrument in question. be corrected and reformed and the further prosecution of the suit in assumpsit be perpetually enjoined, averring therein that the said written instrument failed to contain and set

forth the true agreement made between the parties; that the true and real agreement was that the lodge was to be the absolute owner of the upper story of said building during the life of the same; that plaintiff in error was to be the owner of the lower story and of the real estate, and that under and by virtue of the true agreement entered into between the parties it was the duty of the lodge to keep the entire upper story in repair during the life of the building. The bill recites the institution and prosecution of the suit in assumpsit, and charges that unless said instrument be reformed and corrected as prayed for, the lodge will recover therein. Defendant in error filed its answer, denying that any mistake was made in the execution of said instrument, and averring that the instrument expressed the contract as it was finally entered into between the parties. The answer avers that plaintiff in error had full knowledge of the contents of said instrument, had acted upon the same and had relied upon it in said suit in assumpsit; that said instrument was legal, valid and binding and expressed the true contract between the parties with reference to the occupancy of the premises, and that plaintiff in error is now estopped by laches and neglect from claiming that any mutual mistake existed with reference to the same. The cause was referred to a special master, who heard the evidence and reported the same with his conclusions. The special master found that the parties to the contract agreed upon the form of the instrument as executed and that the instrument took the precise form which the parties intended it should take; that at the time the contract was executed both parties intended that the fee to the second story should pass, but both parties were mistaken as to the legal effect of the instrument executed; that both parties agreed to a lease for ninety-nine years under the mutual mistaken idea that this ninety-nine year lease amounted, in law, to a deed, and that this mistaken idea was a misapprehension of the law, against which equity can afford no relief, and recom