Rhode v. Mclean

CourtSupreme Court of Illinois
Writing for the CourtSHELDON
Citation101 Ill. 467,1882 WL 10186
Decision Date18 January 1882
PartiesWILLIAM RHODE et al.v.MATTIE MCLEAN.

101 Ill. 467
1882 WL 10186 (Ill.)

WILLIAM RHODE et al.
v.
MATTIE MCLEAN.

Supreme Court of Illinois.

Filed at Mt. Vernon Jan. 18, 1882.


[101 Ill. 468]

WRIT OF ERROR to the Appellate Court for the Fourth District;-- heard in that court on writ of error to the Circuit Court of Richland county; the Hon. WILLIAM C. JONES, Judge, presiding.

Messrs. BELL & GREEN, and Mr. J. P. ROBINSON, for the plaintiffs in error:

The bond was shown to have gone into the hands of Henry Blatter, and he should have been called to account for it, before the admission of secondary evidence. 1 Greenleaf on Evidence, sec. 558; Parkins v. Cobbett, 11 Eng. C. L. 394; Chapin v. Taft, 18 Pick. 379.

And what Blatter said to Morehouse about the bond being destroyed, was no evidence against the other defendants. Blatter was a competent witness for the plaintiff, and could have been compelled to produce the bond on the trial. Rev. Stat. chap. 51, secs. 6, 9.

Where a written instrument is traced to the hands of a particular person, that person must be called and sworn to give an account of it. The King v. The Inhabitants, etc. 6 T. R. 236; Jackson v. Hasbrouck, 12 Johns. 192; Woods v. Garrett, 11 N. H. 442; Poignand v. Smith, 8 Pick. 278; The Governor v. Barkley, 4 Hawks, 20. See, also, as to the diligence required, Mariner v. Saunders, 5 Gilm. 113; Rankin v. Crow, 19 Ill. 626; Cook v. Hunt, 24 Id. 535; Williams v. Case, 79 Id. 356; Wing v. Sherrer, 77 Id. 200; Railway Company v. Ingersoll, 65 Id. 399.

[101 Ill. 469]

The substance of a lost paper ought to be proven satisfactorily, and its contents should have been known to the witness, and understood by him, so as not to leave any doubt as to its material parts; and when the proof is made out by parol, the witness should have seen and read the paper, and be able to speak pointedly and clearly as to the tenor and contents. Rigg v. Taylor, 1 Pet. 591; United States v. Britton, 3 Mason, 464; Rankin v. Crow, 19 Ill. 626.

The law is well settled, that where a surety signs a note or obligation of any kind, on the express condition that it is to be signed by another person, as a co-surety, before it is delivered, and it is delivered without being so signed, the payee, or obligee, being chargeable with notice of such condition, such facts constitute a good defence to any action brought upon such instrument against the surety. Stricklin v. Cunningham, 58 Ill. 293; Allen v. Marney, 65 Ind. 398.

Mr. J. M. LONGENECKER, and Messrs. WILSON & HUTCHINSON, for the defendant in error:

As to the last point made, that the plaintiffs in error never consented to the delivery of the bond until it was signed by other obligors, the law is settled against the plaintiffs in error. Smith v. Peoria Co. 59 Ill. 412; Comstock et al. v. Gage, 91 Id. 335.

The objection that the statement of Blatter that the bond was destroyed does not bind his co-defendants, is not sustained by authority. 1 Greenleaf on Evidence, pp. 252, 253; Wharton on Evidence, secs. 1091-2, sec. 143.

“If a document is conceded by the party in whose hands it was last heard from, to have been lost or destroyed, then notice to him to produce it is unnecessary. He is estopped from setting up such possession of the paper as would make a notice to produce of use.” Wharton on Evidence, sec. 161.

The loss is proved by the clerk's certificate or oath, where the statute requires it to be filed. Abbott on Trial Evidence, sec. 14, p. 510.

[101 Ill. 470]

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action upon an appeal bond, given upon...

To continue reading

Request your trial
6 practice notes
  • Belleville Sav. Bank v. Bornman
    • United States
    • Supreme Court of Illinois
    • March 27, 1888
    ...liable as guarantor upon the draft of July 17, 1874. Stricklin v. Cunningham, 58 Ill. 293;Knight v. Hurlbut, 74 Ill. 133;Rhode v. McLean, 101 Ill. 467;Lovett v. Adams, 3 Wend. 380;Hall v. Parker, 37 Mich. 590;Benton v. Martin, 52 N. Y. 570; Fletcher v. Austin, 11 Vt. 447; Edw. Bills, § 186.......
  • W.T. Rawleigh Co. v. Deavours, 6 Div. 199.
    • United States
    • Supreme Court of Alabama
    • January 18, 1923
    ...to the evidence afforded by the decisions of the Illinois Supreme Court pronounced in Comstock v. Gage, 91 Ill. 328, Rhode v. McLean, 101 Ill. 467, and Davis Machine Co. v. Buckles, 89 Ill. 237, neither a surety nor a guarantor can defeat a recovery on such contract because, in breach of th......
  • Cochran v. Bank of Tuttle, Case Number: 1025
    • United States
    • Supreme Court of Oklahoma
    • January 9, 1912
    ...not support his contention. See 2 Elliott on Evidence, sec. 1472; Bertenshaw v. Laney, 77 Kan. 497, 94 P. 805; Rhode et al. v. McLean, 101 Ill. 467; Cooper v. Maddan, 6 Ala. 431; Barmby v. Plummer, 29 Neb. 64, 45 N.W. 277. ¶3 The second assignment, growing out of an incident on the introduc......
  • Mcmillan v. Mcdill
    • United States
    • Illinois Supreme Court
    • May 19, 1884
    ...v. Stevens, 8 Rich. Law, 198; Armstrong v. Farrer, 8 Mo. 627; Allen v. Allen, 26 Id. 327; Milton v. Hunter, 13 Bush, 166; Rhode v. McLean, 101 Ill. 467; Mueller v. Rebhan, 94 Id. 143. Mr. JUSTICE CRAIG delivered the opinion of the Court: William McMillan devised all of his property to seven......
  • Request a trial to view additional results
6 cases
  • Belleville Sav. Bank v. Bornman
    • United States
    • Supreme Court of Illinois
    • March 27, 1888
    ...liable as guarantor upon the draft of July 17, 1874. Stricklin v. Cunningham, 58 Ill. 293;Knight v. Hurlbut, 74 Ill. 133;Rhode v. McLean, 101 Ill. 467;Lovett v. Adams, 3 Wend. 380;Hall v. Parker, 37 Mich. 590;Benton v. Martin, 52 N. Y. 570; Fletcher v. Austin, 11 Vt. 447; Edw. Bills, § 186.......
  • W.T. Rawleigh Co. v. Deavours, 6 Div. 199.
    • United States
    • Supreme Court of Alabama
    • January 18, 1923
    ...to the evidence afforded by the decisions of the Illinois Supreme Court pronounced in Comstock v. Gage, 91 Ill. 328, Rhode v. McLean, 101 Ill. 467, and Davis Machine Co. v. Buckles, 89 Ill. 237, neither a surety nor a guarantor can defeat a recovery on such contract because, in breach of th......
  • Cochran v. Bank of Tuttle, Case Number: 1025
    • United States
    • Supreme Court of Oklahoma
    • January 9, 1912
    ...not support his contention. See 2 Elliott on Evidence, sec. 1472; Bertenshaw v. Laney, 77 Kan. 497, 94 P. 805; Rhode et al. v. McLean, 101 Ill. 467; Cooper v. Maddan, 6 Ala. 431; Barmby v. Plummer, 29 Neb. 64, 45 N.W. 277. ¶3 The second assignment, growing out of an incident on the introduc......
  • Mcmillan v. Mcdill
    • United States
    • Illinois Supreme Court
    • May 19, 1884
    ...v. Stevens, 8 Rich. Law, 198; Armstrong v. Farrer, 8 Mo. 627; Allen v. Allen, 26 Id. 327; Milton v. Hunter, 13 Bush, 166; Rhode v. McLean, 101 Ill. 467; Mueller v. Rebhan, 94 Id. 143. Mr. JUSTICE CRAIG delivered the opinion of the Court: William McMillan devised all of his property to seven......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT