Gray et al. v. Morey. was given for exact amount drawn out; the first amount that was drawn out, Follansbee came and wanted $70 or $80 to pay out on some lots to bind the bargain; this was on the 14th of February. The note was taken up after the cattle were replevied and sold. The agreement was to pay Mr. Follansbee's checks when he wanted money. I saw Morey sign the note, which was as follows: $718.57. Sandwich, Feb. 16, 1860. One day after date we promise to pay to the order of CASTLE & SHEPARD Seven Hundred and Eighteen 57-100 Dollars, value received. On the back of said note was the following indorsement: Received of SMITH MOREY within note in full. February 20, 1860. CASTLE & SHEPARD. (Signed) The counsel for the plaintiff then asked the witness the following question: Did Morey, the plaintiff, say anything to you as to Mr. Follansbee's connection with him in the purchase of these cattle? if so, what did he say? The defendant's counsel objected, on the ground that the statements of the plaintiff could not be admitted as evidence in his own favor. The court overruled the objection and admitted the evidence as forming a part of the res gesta, and the defendant's counsel excepted. The witness answered: Mr. Morey said Mr. Follansbee was to help him, and he was to let him have money to buy cattle. The counsel for the plaintiff then asked the witness the following question: What was said by Morey at the time the arrangement was made for the money in question, as to Follansbee's partnership interest with him? The counsel for the defendant objected. Objection overruled, and exception. The witness then answered: Mr. Morey said that Mr. Follansbee told him he was dissatisfied with other lots of cattle they had bought together, and he, Morey, wanted to buy alone. On his cross-examination the witness testified: The indorsement on the back of the note is in Mr. Castle's handwriting. Mr. Follansbee went with the cattle to Chicago; we heard that the cattle had been levied upon, and my partner, Mr. Castle, immediately went to Chicago, to see about it, and assist in having them replevied. The recovery of the judgment set out in the defendant's plea, the issuance and delivery to the sheriff, John Gray, of execution thereon, and the taking of the cattle in controversy thereon, as charged in said plea, were admitted. Gray et al. v. Morey. Johnson Misner was offered as a witness on the part of the defendant. The counsel for the plaintiff objected to him, on the ground of interest, and being examined, on his voir dire, he testified: I am one of the defendants in the execution under which the cattle in controversy, in this suit, were taken. Henry Misner, the person for whose use said action was brought, is my father. That judgment was obtained for money paid by my father on a note given by Follansbee, and on which I was surety. After the judgment was obtained, and before execution was issued, my father released me from all liability on the judgment and gave me a release and receipt in full; that paper I have at home I did not bring it with me. The plaintiff's counsel objected to the admission of the witness, on the ground that he was one of the defendants in judgment upon which execution was issued, and if witness had a written release from Henry S. Misner, he should produce it. The court sustained the objection, and defendant's connsel excepted. The court, upon the request of defendant's counsel, gave the following instructions: 1. The presumption of the law is, that a party in possession of property is the owner thereof. 2. If the jury believe, from the evidence in the case, that the plaintiff owned the cattle in question jointly with Gilbert Follansbee, then the plaintiff is not entitled to recover. 3. If the jury believe, from the evidence, that the cattle in question were purchased under an arrangement that there was to be a division of the profits arising from the sale thereof, between the plaintiff and Follansbee, they are parties then to that enterprise, and the plaintiffs are not entitled to recover. 4. If the jury believe, from the evidence, that the note given by Morey was to be paid out of the proceeds of the sales, the fact that the note was so made by Morey makes no difference with the plaintiff's right to recover, if the jury also believe that the profits were to be divided between Morey and Follansbee. 5. The admissions of a party to a suit are strong evidence against him, and particularly when against his own interest, and the statements of a party are slight evidence when introduced in his favor. If the property was in the possession of Follansbee and was shipped and consigned to him, then such facts justify the officers in levying upon the same; and before suit was brought, a demand should have been made, of the officer, of the property. Assignment of errors as follows: The court erred in permitting the bond, given upon the com Gray et al. v. Morey. mencement of said suit, to be altered, and the new bond substituted therefor. The court erred in overruling the objections made by the counsel for the defendants to the introduction and examination of Shepard as a witness for the plaintiff, and in permitting said Shepard to be sworn. The court erred in overruling the objections made by the counsel for the defendants to the evidence of Shepard. The court erred in overruling the objections made by the defendants upon the trial to the introduction of evidence by plaintiff. The court erred in sustaining the objections made and taken by the counsel for the plaintiff to the competency and admissibility of Johnson Misner, introduced and offered as a witness by the defendants, and in deciding that said witness was not competent, and excluding him as a witness. The court erred in directing judgment to be entered upon the verdict of the jury in manner and form as the same was entered. The verdict of the jury was not authorized by law, and the said jury, after finding that the demand of the property was necessary before suit brought, were not authorized and had no right to pass upon the question of property. The verdict is against evidence. The verdict is against law and evidence. The court erred in overruling and denying the motion for a new trial. E. S. SMITH, and E. M. DEWEY, for Plaintiffs in Error. C. C. BONNEY, and E. W. EVANS, for Defendant in Error. WALKER. J. There is no portion of the practice which we regard more uniformly or better settled, than that the court may permit an appeal bond, a replevin bond, a bond for costs, etc., to be canceled and a new one executed, to render a witness, who is a party to the bond, competent to testify. No possible injury can result to the parties, and it may become highly necessary to the attainment of justice, that the practice should obtain. The law will not permit the party, against whom the evidence is proposed to be given, to hold such an unjust advantage of his adversary, when public policy does not oppose. This question has been repeatedly before this court, and must be regarded as at rest. Kimmell v. Schwarts, Breese, 218; Amos v. Sinnett, 4 Scam. 418. It is not perceived that, because Morey had given his note to Shepard and his partner, which he at the time agreed to pay Gray et al. v. Morey. out of the proceeds of the sale of the cattle, renders the witness incompetent. The note had been paid, canceled and given up, by the firm. And the fact that it was paid out of the price received on the sale of the cattle after they were replevied, makes no difference. The firm had received their money, and it was a matter of no interest to witness who succeeded, in the replevin suit. If the plaintiffs in error were successful, and defendant in error was unable to return the cattle, or pay their value, then Castle would have been individually liable as his surety to discharge the damages by reason of the wrongful replevying of the cattle. But it is not perceived in what manner the firm or witness would be liable. It could not be by virtue of the individual liability of his partner. Plaintiffs offered Johnson Misner as a witness, but the court excluded him from testifying. He testified on his voir dire, that he was one of the defendants in the execution under which the cattle in controversy had been seized. That he was the security of Follansbee, but after the rendition of the judgment he had been fully released. That he had the release, but not with him when he testified. It was objected, that the fact that he was a defendant in the execution rendered him incompetent, and that he could not show his restoration to competency except by producing the release. In the case of Clifton v. Reynolds, 1 Scam. 32, it was held, that the defendant in execution was a competent witness on a trial of the right of property. But it was afterwards provided, by legislative enactment, that he should not be competent. After the passage of that law it was, however, held, in the case of Miller v. Dobson, 1 Gilm. 573, that a defendant in execution was a competent witness in a case of replevin. This, then, was no grounds for excluding this witness. But even if it had been, he, on his voir dire, proved his release from all liability under the judgment. This, under the case of Ault v. Rawson, 14 Ill. 485, was proper, so as to restore his competency. The court below, therefore, erred in excluding this witness from testifying, and the judgment must be reversed, and the cause remanded. Judgment reversed. Myers et al. v. Ladd et al. HENRY MYERS et al., Plaintiffs in Error, v. JOSEPH LADD20 434 et al., Defendants in Error. ERROR TO TAZEWELL. Parol evidence is admissible for the purpose of identifying the property actually mortgaged. Where there are two descriptions of the same premises in a deed, one of which is complete, and the other has something added which is subordinate and incorrect, the incorrect or subordinate part may be rejected as surplusage. THIS was an act of trover, originally brought in the Peoria Circuit Court, and the venue charged to Tazewell. The declaration was in the usual form for converting goods and chattels, then situate in a mill, built by Randolph Ross, Jr., in Lancaster, Timber township, Peoria county, Illinois, to wit: ne twelve inch by-engine, of twenty inch stroke, cast frame; one thirty-four foot boiler, forty-two inches; one double Child saw mill, thirty and fifty inch; the belts used in running said machinery; also, all the fixtures for running said engine and boiler and saw mill, complete, including guy rods for chimney, of the value of two thousand dollars. Defendants pleaded general issue. Upon the trial of the cause, the first evidence introduced by the plaintiff was a mortgage. Made and entered into this sixteenth day of June, A. D. 1858, between Randolph Ross, Jr., of Tazewell county, Illinois, party of the first part, and H. Myers & Co., of Tazewell county, Illinois, parties of the second part, witnesseth: that the said Randolph Ross, Jr., has this day sold to the said H. Myers & Co. the following described machinery, which is situate in his mill in Lancaster, Timber township, Peoria county, State of Illinois, to wit: One twelve inch by-engine, twenty inch stroke, cast frame; one thirty-four inch boiler, forty-two inches; one double Child saw mill, thirty and fifty inch; the belts used in running said machinery; also, all the fixtures for engine and boiler and saw mill complete, including guy rods for chimney, for the sum of thirteen hundred and eighty-one dollars, the receipt of which is hereby acknowledged; but the conditions of the sale are such that whereas, the said Randolph Ross, Jr., is indebted to Clark, Plant & Norris, of Saint Louis, to the amount of thirteen hundred and eighty-one dollars, for which said Randolph Ross, Jr., with H. Myers & Co. as security, have executed two several notes, dated August 14th, 1857, each for the sum of six hundred and ninety dollars and fifty cents; one due in three, and the other in six months from date. 26 415 166 231 |