Whitehall v. Smith , 24 Ill. 166 ( 1860 )

Catón, C. J.

It was too late to take the objection to the form of the verdict. It was cured by the statute of Jeofails. But the proof of the loss of the affidavit and warrant was insufficient to admit secondary evidence of their contents. The affidavit was made before Justice Ayers, and the warrant issued by him. On some occasion, he went to Virginia, and left a part of his papers with the witness, Bryant, and a part with one Joiner. Bryant swore they were not in the box of papers left with him, nor were they pinned into Ayers’ docket, which he was in the habit of doing with papers relating to a cause. If it was impossible to get the testimony of Ayers to prove the loss of these papers, there is no excuse shown for not producing Joiner, or showing by some one else that they were not with those papers left with him. This was not done.

The judgment must be reversed, and the cause remanded.

, Judgment reversed.