Rankin v. Crow

• Decision Date: 30 April 1858
• Citation: 1858 WL 6002,9 Peck 626,19 Ill. 626
• Parties: DAVID RANKIN, Appellant,v.JOHN CROW, Appellee.
• Court: Illinois Supreme Court

19 Ill. 626
1858 WL 6002 (Ill.)
9 Peck (IL) 626

DAVID RANKIN, Appellant,
v.
JOHN CROW, Appellee.

Supreme Court of Illinois.

April Term, 1858.

APPEAL FROM HENDERSON.

To authorize a court to receive secondary evidence of the contents of a deed lost or destroyed, it should be clearly made to appear that the search for the lost deed has been diligent and thorough in all places where it may reasonably be supposed it had been or might be; the statement of a witness that diligent search had been made to find it, is not sufficient.

And if the papers of a party owning or holding such a deed as is supposed to be lost, have ever been in the custody of any other person, such person should be produced to account for the loss.

A party, to avail himself of such secondary evidence, should be required to make at least the same effort that it is expected he would make if he were to lose the benefit of the evidence, if the instrument were not found.

The substance of a lost paper ought to be proved satisfactorily; its contents must have been known to the witness, and understood by him, so as not to leave any doubt as to its material parts.

The jury is bound to take as evidence the testimony of an unimpeached witness. But a witness may be impeached by other witnesses, by his manner of testifying, his feelings towards the parties, inconsistency in his statements, his want of intelligence, or the want of means of knowing the facts of which he testifies.

THE facts of this case are fully stated in the opinion of the court.

The cause was tried before THOMPSON, Judge, and a jury.

WEAD & WILLIAMSON, for Appellant.

O. C. SKINNER, for Appellee.

WALKER, J.

This was an action of trespass to real estate, brought by Rankin against Crow, in the Henderson Circuit Court. The first count was for cutting and hauling trees from W. 1/2 S. W. 10, 9 N., 5 W. The second count, for cutting and hauling trees from plaintiff's premises. To this declaration defendant filed the general issue and a plea denying title

[19 Ill. 627]

of the premises in the plaintiff, and issue joined. The case was tried before the court and a jury at the December special term, 1857. On the trial, plaintiff introduced a patent from the United States to John Gibson for the premises described in the declaration, dated the 10th of October, 1840. Also a deed from John Gibson to plaintiff, for the same premises, dated January 2nd, 1856, which was acknowledged and recorded in Henderson county. Plaintiff then introduced evidence, tending to prove the trespasses mentioned in the declaration. The defendant, to prove the loss of a deed from John Gibson to one John H. Dunn, introduced his wife, who testified that she was the wife of J. H. Dunn, and had possession of all his papers after his death; that she did not know anything about a deed from Gibson to Dunn; that she had made diligent...