Fisher & Haines v. Meek

Citations

• 38 Ill. 92

Syllabus

<p>1. Witness—credibility—by what evidence it may be questioned. In an action of trover for a promissory note, the defendant insisted that the note was placed in his hands as collateral security for an execution which he, as sheriff, held against the owner of the note, and offered in evidence a letter of the agent of the owner who placed the note in his hands, stating such to have been the purpose for which it was given him. The writer of the letter had sworn upon the trial,' denying that the note was deliver id as collateral, and it was held, his letter was competent to weaken that j art of his testimony, and admissible for that purpose, if for no other.</p> <p>2. Evidence—a party cannot make evidence for himself. A letter written by the attorney of the plaintiff in the execution to the sheriff, after the note came to the sheriff’s hands, relating to the manner in which the note should be held, and Ms reply thereto, would be inadmissible in behalf of the sheriff on the trial of such a case, because that would be making evidence by the party himself.</p> <p>3. Lien upon collaterals—whether waived. Where a promissory note is placed in the hands of a sheriff as collateral security for an execution which he holds against the owner of the note, an attempt by the sheriff to hold the note under a void levy of the execution upon it will not operate as a waiver of the lien.</p> <p>4. Practice—special plea not replied to—the effect thereof. Where the general issue is pleaded in trover, and a special plea, the fact that the latter was not replied to cannot work any injury to either party, as under the general issue every fact which could be specially pleaded, could be given in evidence; and it would be presumed that was done. That would be a waiver of the replication.</p>