Bartlett v. Cunningham

Citations

• 85 Ill. 22

Syllabus

<p>1. Instructions—as to degree of evidence. Where the defendant pleads two special pleas, in substance presenting the same defense, so that proof of the one is sufficient to sustain the other, there is no error in instructing the jury that the defendant is bound to establish the facts set up in his special pleas by a preponderance of evidence, as it can not mislead.</p> <p>2. Same—as to matters not in issue. There is no error in refusing an instruction based upon a fact not put in issue by the pleadings.</p> <p>3. Surety—of the notice to sue, to discharge. To release a surety, under the statute, satisfactory proof must be made, of a notice in writing, by him to the holder of the obligation, to put the same in suit, and a refusal or neglect to do so. Proof of the delivery of such notice to an agent of the holder, and that the agent told the holder of the fact, is not sufficient.</p>