dissenting:
Upon the consideration of this case for a rehearing, a majority of the court adhere to the views expressed in the foregoing opinion. Having participated in its consideration upon the rehearing, I feel impelled, from a sense of duty, to present my views upon one of the questions therein discussed.
Without expressing any opinion as to the correctness of the general conclusion in this case, I am unable to concur in one of the positions assumed by the court in reaching that conclusion; and believing, as I do, it is in direct conflict with law and correct practice in the trial of causes, as laid down by the best elementary writers, and the decisions of this and other courts of high standing; and believing, if the position in question is once firmly established, it will greatly confuse and obstruct the administration of the law, and often result in wrong and a complete denial of justice, I deem it a duty to dissent from that position and state my reasons for doing so.
Appellants offered to show, on the trial in the court below, that they executed and delivered the bond sued on to Holmes upon the express condition and understanding that it was not to be delivered to Gage till signed by all the directors of the bank, and that, in violation of this condition and understanding, the bond had been delivered to Gage, without the signature of William H. Adams, who was at the time one of the directors of the bank.
The court below refused to allow appellants to make proof of these facts, and the .exclusion of this testimony is one of the errors relied on for a reversal. The action of the court below, in excluding this testimony, is sustained by a majority of this court, upon two grounds:
First, That the facts proposed to be shown would not, of themselves, constitute a defence. Second, That there was no offer to show or prove that Gage had notice of these facts.
That the facts proposed to be shown would not, of themselves, constitute a defence, is unquestionably true. But is that a sufficient reason for excluding the testimony? I had always supposed that it was sufficient, if evidence tended to prove the issue, or, in other words, tended to prove the plaintiff’s claim or charge or establish the defendant’s defence. If a bond be executed and delivered by the maker to an agent with instructions not to deliver it to the obligee until some other specified person shall sign it, and the obligee has notice of the maker’s instructions, he will have no right to receive the bond until they have been complied with; and if he does so, he can not maintain an action upon it unless the maker shall subsequently, in some manner, ratify the act of his agent, or otherwise so conduct himself as to estop him from setting up the defence. That this proposition is true, I presume no one will question.
It therefore follows,' that if, under the circumstances supposed, the maker is sued on the bond, he makes out a prima facie defence by showing, first, the maker’s instructions to his agent; second, the delivery of the bond in violation of the instructions; third, that at the time of the delivery the obligee had notice of the maker’s instructions. Now, these three facts, let the order of proof be what it may, constitute a prima facie defence to the action, but the natural and logical mode of presenting them to the court and jury would be to prove them in the order of their occurrence as I have just stated them, and there is no question in my mind but that the court in the exercise of its discretion would have the right to reauire them to be proved in the order mentioned.
The case under consideration, like the one supposed, was a suit upon a bond. The makers, on the trial in the court below, offered to prove the first fact in this line of defence, namely, that the bond was signed upon the condition that it was not to be delivered until all the directors of the bank had signed it. This fact was the first in the series which constituted the defence, aud was offered in the natural and logical order above stated. The court, without assigning any reason therefor, excluded the evidence. Was the fact proposed to be shown of a purely collateral character, so that the trial court could not see its bearing upon the case before it? If so, it was properly excluded from the jury—otherwise it was not. Can any lawyer, however humble and inexperienced, have a doubt as to the purpose of this testimony ? I think not. It must be conceded that the object in offering it was apparent. Hence there was no necessity of informing the court. I do not at all question the rule that where a fact purely collateral is offered in evidence, if objected to, it is the duty of the party offering it to point out its materiality, and if he does not do so, it is the duty of the court to exclude it. I also admit the rule to its fullest extent, that where a party is called upon by the court to state the purpose for which a certain fact is offered whose relevancy is not obvious, it is his duty to do so, and if he refuses, the court has a perfect right to reject it.
So, also, while courts do not ordinarily interfere with the order in which testimony is produced, when its pertinency is apparent, yet I concede they have the right, where the evidence relied on, in support or defence of an action, consists of a number of dependent facts or links in the chain of testimony, to require them to be produced in their natural and logical order, or, in other words, in the order of their occurrence, and if this requirement is not complied Avith, the court may reject the testimony. This, however, is conceding more than the decisions of this court or the authorities generally warrant.
But where the evidence, consisting of a number of dependent facts, or links constituting a chain of testimony, is offered in its natural and logical order, and its relevancy is apparent, I deny the right of the court to exclude it merely because the first fact offered is not accompanied with a statement that the subsequent facts or links in-the chain will also be put in evidence.
And this brings me to the second reason assigned by the court for holding there was no error in excluding the testimony offered by appellants as above stated. As already appears, appellants proposed proving that the bond sued on had been delivered to Holmes upon the express condition that it was not to be surrendered to Gage till all the directors of the bank had signed it. To prove this fact, was the first step towards making out a complete defence. That it tended to prove the issue, was manifest.
To make the defence complete, two o.ther facts had to be proved, two other steps taken, but only one could be proved or taken at a time. Why not allow the first step to be taken,— the first fact to be established in its order? A majority of the court say, because appellants did not, at the same time, offer to prove the other two facts, namely the delivery of the bond to Gage, without performance of the condition, and that he (Gage), at the time, had notice of the condition upon which the bond was to be delivered. But why should this offer have been made as a condition precedent to proving the first fact? Surely not to enable the court to see the drift or relevancy of the testimony actually offered, for a mere novice in the law could see that. And if it was not necessary for that purpose, I am unable to see any good reason for requiring such an offer.
Had the court supposed that counsel was not acting in good • faith, and that there was no purpose of following up the fact offered to be proved with proof of the other facts, depending upon that one and necessary to make the one offered available, it was but just to counsel to have asked him if he was prepared to prove the dependent facts, and if counsel had admitted that he was not, or that he had no purpose of doing so, then it would have been proper to have rejected the testimony.
There are some adjudicated cases decided by this court which may be supposed to sustain the view expressed by the majority of the court, but I am satisfied that a careful examination of them will demonstrate that they do not.' On the contrary, it will clearly show that the view in question can not be maintained.
Lombard v. Cheever et al. 3 Gilm. 469, was an action of replevin for certain boats which the plaintiff claimed had been forfeited to him as the owner of a ferry. On the trial, the court below excluded from the jury the license of the plaintiff to keep a ferry, and this court, in reviewing the action of the court below, in excluding the license, said: “The object of the plaintiff, in offering this evidence, as explained by the bill of exceptions, was a legitimate one. He claimed to be proprietor of a ferry, and that the boats replevied by him, having been run by the defendant in derogation of his rights, were forfeited to him. It consequently became material for him to prove his title to the franchise claimed. Such proof was not made by the mere production of the license. It should have been preceded or at least accompanied by proof of the order of the county commissioners’ court granting it. * * * Then, though the license is a necessary link in the chain of title to the ferry franchise, and that offered by plaintiff, being regular on its face, was for such purpose legally admissible, it does not follow that it was erroneously rejected. The true rule on the subject is, that although the court will not indicate to parties the order of the introduction of their testimony, yet, when evidence is offered of any fact which, in the order of its occurrence, must have been preceded by some other fact, without proof of which the evidence offered is wholly insufficient for the purpose for which it is introduced, it should be received only on the assurance of the party offering it that such other proof will also be made. If it should not be, the court, on motion of the opposite party, will exclude such testimony, or instruct the jury that it is insufficient to entitle the plaintiff to a verdict.”
The case just cited is not, in principle, like the one now under consideration, and does not at all sustain it, but, on the contrary, the rule therein laid down is in direct conflict with it. The fact which appellants proposed to prove in this case, and which Avas excluded by the court, Avas not one Avhich, in the order of its occurrence, must have been preceded by some other fact upon Avhich it was dependent, but, on the contrary, it Avas the first in the order of occurrence, and its probative force did not at all depend upon any fact preceding it. The truth is, appellants were proceeding in strict conformity with the rule laid down in that case. Under the rule in that case, so long as a party offers the facts in the order in which they occurred, he is not bound to make any statement to the court Avith reference to Avhat he expects to prove. It is only when he passes by a fact in regular sequence, and proposes to show some other fact in the chain of testimony whose probative force depends upon the fact thus passed by, that he is bound under the rule to make a statement to the court as to what he expects to prove.
It is quite apparent, as already stated, that the rule now laid down is in direct conflict with the rule laid doAvn in that case. Let us look at it. Here is a defence consisting of three connected facts, following each other in regular sequence. It takes them all to make the defence complete, yet each fact has a separate probative force that tends to make out the defence. The rule in Lombard v. Cheever et al. says, these facts must be offered in the order of their occurrence, and if not so offered, the party offering the testimony must make a statement to the court, showing that the link or links in the testimony Avhich he proposes for the present to pass over, will be subsequently proven, and if he fails to make such statement, the fact or facts so offered out of their order may be rejected by the court.
Now, this is clearly the rule in Lombard v. Cheever et al. If, then, no statement is required Avhere the facts are offered in the order of their occurrence, the conclusion is irresistible that the court below erred in excluding the evidence in question, for it will not and can not be denied that the fact first offered in evidence was first in occurrence. It follows, therefore, the case last cited, so far from supporting the view of the majority of the court, is an authority directly against it.
Lonergan v. Stewart, 55 Ill. 44, is also supposed to sustain the rule laid down in the case now under consideration, but I do not view it in that light. Lonergan deposited a lot of corn with Bradt, who was the owner of a warehouse in which the corn was stored. Bradt failed, and Stewart succeeded him in the possession of the warehouse and its contents, including the corn in question. After the transfer to Stewart, Lonergan demanded the corn of him, and, on his refusal to deliver it, brought an action of trover to recover its value. On the trial in the circuit court, Lonergan offered in evidence a receipt for the corn, executed by Bradt at the time of the delivery of the corn to him, and it was held by this court that the court below properly excluded it from the jury. And in speaking of this receipt, and its exclusion from the jury, the court say: “ It was not executed by the defendant, and no foundation had been laid for its introduction, nor was the offer preceded by any statement that the defendant would be connected Avith it by proof. The relevancy at the stage of the cause at which it was offered was not shown, and was not apparent. It was in the discretion of the court to admit it or not.”
There is nothing in this case but what is in perfect harmony with the view I have already expressed. Here, a receipt executed by a stranger was offered in evidence against the defendant. For aught that appeared, it had no connection in the world with the case, and it was therefore properly excluded. So, I say, in all cases where the court can not see the relevancy of testimony, and no statement is made by the party offering it showing its relevancy, the court, in its discretion, may exclude it. Indeed, the rule laid down in this case is, perhaps, of more frequent application than any one known to the law relating to the production of testimony.
It is universally true, that where the pertinency of evidence is not apparent, and its relevancy is not pointed out, the court will, on motion, exclude it. This is the principle which the case announces, and I presume no one would question it for a moment, for it is to all lawyers as familiar as household words, and as old as the law of evidence.
In City of Alton v. Hartford Fire Insurance Co. 72 Ill. 328, which was an action to recover a penalty imposed by an alleged ordinance, the court below excluded from the jury the ordinance upon which the action was based, on the ground that plaintiff had shown no authority in the city to pass it, and this court, on error, sustained the ruling of the court below. This case differs materially from the one last cited. Here the relevancy of the testimony was apparent, but it was not offered in the order of its occurrence. The validity of the ordinance was wholly dependent upon the fact whether or not the city had been clothed with power to pass it.
It affirmatively appears in that case, that the defendant denied the power of the city to pass the ordinance, and objected to its introduction for that reason; and the plaintiff failing or refusing to show the requisite power to pass the ordinance, it was, of course, properly excluded. It is evident, therefore, that this case is not at all analogous to the one under consideration, and the latter is not, in any sense, supported by it.
It will be further perceived, that the proof offered was not presented in its natural order, or, as expressed in the case of Lombard v. Cheever et al. supra, it was not offered in the order of its occurrence. The fact offered to be shown—namely, the existence of the ordinance,—without proof of power to pass it, would have had no probative force whatever. How, had the plaintiff first offered to show the authority of the city to pass the ordinance, and the court had excluded it because the plaintiff did not, at the same time, inform the court that plaintiff intended to follow up this evidence by proof of the passage of an ordinance by the city, in pursuance of the power, the cases would be analogous. The one cited is not of the kind supposed, and I confidently assert that no case can be found decided by this court, or any other court of equal standing, sustaining the rule laid down in the present case.
The foregoing are all the authorities to which my attention has been called, and which it has been suggested favor the rule under consideration, and I am willing to submit them without further comment.
The rule laid down by Mr. Greenleaf on this subject, in his work on Evidence, is expressed in these words: “It is not necessary, however, that the evidence should bear directly upon the issue. It is sufficient if it tends to prove the issue or constitutes a link in the chain of proof, although, alone, it might not justify a verdict.” And with respect to evidence whose relevancy is not apparent when offered, he adds: “Nor is it necessary that its relevancy should appear at the time when offered, it being usual to receive, at any proper and convenient stage of the trial, in the discretion of the judge, any evidence which the counsel shows will be rendered material by other-evidence which he undertakes to produce. If it is not subsequently thus connected with the issue, it is to be laid out of the case.” 1 Greenlf. (12 ed.) page 62, sec. 51 a.
In Haughey v. Strickler, 2 Watts & Serg. 411, where a partnership note had been admitted to the jury before (as it was claimed) the partnership of the defendants had been established, the Supreme Court of Pennsylvania held there was no error, saying: “This was rather a question as to the order of giving evidence than its admissibility. Distinct matters forming separate links in a connected chain of title often can not be conveniently given in evidence together. It is no answer to evidence that it does not prove the plaintiff’s whole case. If it is a link in the chain of the evidence afterwards to be given in, it is admissible.” To the same effect are the eases of State v. McCallister, 11 Shepley, 139; Johnson v. Warden, 3 Watts, 104; Tams v. Bullitt et al. 35 Penn. 308; Lake v. Mumford, 4 Smedes & Marsh. 312.
The case of Bartlett v. Evarts, 8 Conn. (old series) 523, is exactly in point, and supports the view I have taken. There the establishment of two facts was necessary to make out the case, namely: that certain posts and rails were erected, and that they were erected by the defendant. The plaintiff offered to show, first, the fact of erection, but the court below rejected the testimony, and it was held error. It is to be observed that the evidence was offered in its natural order, and, as in this case, its relevancy was apparent. Mr. Wharton, in his work on Evidence, (2d ed.) vol. 1, sec. 21, says: “Hence, it is relevant to put in evidence any circumstance which tends to make the proposition at issue more or less improbable; nor is it necessary, at once, to offer all the circumstances necessary to prove such proposition. The party seeking to prove or disprove the proposition may proceed step by step, offering link by link.”
Dunning et al. v. Matthews, 16 Ill. 308, was an action of trespass guare clausum fregit. The defendants in the court below justified under certain proceedings in the county court authorizing the location of a highway over the locus in guo. The papers and files in that proceeding which were offered in evidence failed to show that all the requirements of the statute had been complied with, and the evidence was objected to on that ground. The court thereupon stated to counsel, that if it was proposed to follow the testimony offered with proof that the other provisions of the statute had been complied with, the evidence offered might go to the jury; but the defendants, on being thus called on by the court, refused to make such further proof, and the court thereupon excluded the testimony, and this court held there was no error in doing so. If any such rule existed as is now contended for, the case certainly afforded a very opportune occasion for its announcement, but it was not done; and that decision is placed upon the express ground that the defendants did not, when their attention was called by the court to the insufficiency of the facts proposed to be shown, and the necessity of supplementing them with other facts in order to malte out a defence, pretend to be able to supply the wanting links in the chain of testimony, or make any offer or explanation with reference thereto. Under the circumstances it would have been a useless consumption of time to have gone on to prove a part of the facts constituting the defence, when it was substantially admitted that the residue of the facts would not or could not be proved. If, as a matter of law, the defendants in that case were bound to state, in the first instance, without any request to do so by the court, all the facts constituting their defence, at the peril of not being permitted to prove anything, it is somewhat remarkable that the, court did not place its decision upon that ground.
In Hough v. Cook, 69 id. 581, this court, in discussing the relevancy of testimony, lay down the rule in these terms: “ To determine the relevancy of evidence, the question is, not whether it was sufficient of itself to make out the defence, but W'ould it tend to prove the defence.”
Willoughby v. Dewey, 54 id. 266, was an action brought by plaintiff in error as constable, against defendant in error, for the price of a field of growing wheat sold under execution. On the trial below, the plaintiff, for the purpose of proving the judgment upon which the execution issued, offered in evidence the justice’s docket containing the judgment.
This evidence was excluded by the court on the ground that it was not first shown that the justice had jurisdiction to render the judgment. And this was held to be error. The court say, “ the objection here made is, that the docket, if admitted, would show only the judgment, but would not show that the magistrate had jurisdiction of the subject matter or of the person sued. Should that be so, it would not render the docket incompetent evidence. Competency of evidence is one thing, what it may prove is entirely another thing.” The evidence here was offered in its natural order, or, in other words, in the order of its occurrence.
The case of the plaintiff consisted of a chain of facts: First, the judgment; second, the execution; third, the sale; fourth, the purchase by the defendant. If the rule now laid down by this court is the law, the case just cited ought not to have been reversed. The court ought to have sustained the ruling of the court below, in excluding the justice’s docket, on the ground the plaintiff did not, at the same time he offered the docket in evidence, inform the court that he expected to follow up the proof of the judgment by showing the execution, the sale and purchase by the defendant. . To have proved all these facts would have shown the justice had jurisdiction at least of the subject matter. . It is very clear the judgment in this case would no more have established the plaintiff’s claim for the price of the field of wheat, than proof that the makers of the bond in question delivered it to Holmes with instructions not to deliver it to Gage till all the directors had signed it would have constituted a defence to the bond.
The two oases are precisely alike in principle, and I insist the latter case ought to be controlled by the former, not only on the ground of precedent but on the ground of reason and convenience.
But, going further back in the line of decision's of this court upon the question under consideration, I invite attention to the case of Rogers v. Brent, 5 Gilm. 575. This case was an action of ejectment wherein the defendant in the court below had offered in evidence a certificate of the register of the land office, showing a purchase from the government of the land in controversy by one Bowman, through whom defendant claimed. This evidence was excluded by the court below, and it was held error.
In passing upon the question the court say: “It only remains to be seen whether the evidence which he offered, and which was excluded by the court, tended to prove such a case: for, according to Mr. Greenleaf, the court was authorized to exclude all evidence of collateral facts, or those which are incapable of affording any reasonable presumption or inference as to the principal fact or matter of dispute.” “ Was the .evidence offered incapable of affording such reasonable presumption or inference ? On the contrary, it was the very foundation of the case, which it was competent for him to prove. Without it, all other evidence would have been useless. Without it, it would have been impossible for him to have made out his proposed defence. The question is not, whether it was sufficient of itself to make out the defence, but would it aid to make out the case;—would it tend to prove the defence? Most cases have to be proved by a succession of distinct facts, neither of which, standing alone, would amount to anything,—while all, taken together, form a connected chain and establish the issue, and, from necessity, a party must be allowed to present his case in such detached parts as the nature of his evidence requires, It would be no less absurd than inconvenient, when proof is offered in its proper order of one necessary fact, to require the party to go on and offer to prove at the same time all the other necessary facts to malee out the case. Such a practice would embarrass the administration of justice and prove detrimental to the rights of parties."
This case is in point, and in direct conflict with the rule laid down by the court in the present case. That which the case cited declares to be absurd, the court now lays down as a rule in all future cases. And this is done even without a reference to the case which holds that such a rule would be absurd; and, indeed, without reference to any case that supports the rule now laid down.
Going still further back, I find that the same rule laid down in Rogers v. Brent, is distinctly announced in the case of Hulick v. Scovil, 4 Gilm. 168. This court, in discussing the very question now under consideration, say : “ Testimony, if relevant, may be properly received, although in itself insufficient to show good ground of recovery or defence, as the case may be, and where its deficiency may be supplied by other proof, as, for instance, a sheriff’s deed, which, to show title, must be accompanied by evidence of a judgment and execution; or, the ordinary case of a series of deeds to show title. Ik such case it is not necessary to exhibit the entire chain of evidence at a single view, but, from the very nature of the case, it must be extended progressively. The question is not as to the sufficiency of the link offered and its associate links to complete the chain, or endue it with the necessary strength for its intended purpose^ but simply as to its adaptation to the composition of the proposed chain. Nor will the court undertake so to control a party endeavoring to make out his chain of title, as to require that each link be the regular sequence of that next preceding in the order of the evidence. When, however, the whole evidence on the subject has been heard, if the court consider it insufficient they may, on the application of the party against whom it is offered, either exclude it, or instruct the jury it is insufficient to maintain the action or defence, as the case may be.”
It is evident that the doctrine of this ease can not be harmonized with the rule which the court now lays down. Indeed, no effort is made to do so. Nor is there even so much as a passing reference made to this case, or any of the other cases which I have cited announcing, in substance, the same principle.
Now, I submit, with all deference to the majority of the court, that where a rule, governing the production of testimony, has been announced in plain, emphatic, and unmistakable terms, as was done in the two cases last cited, if it becomes necessary to change such rule by judicial decision, it is due to the cause of jurisprudence, to the court itself, and an enlightened bar, that the reasons for doing so should be distinctly stated, and that the cases establishing the rule should be in express terms overruled.
Believing that the rule now laid down is unsupported by any previous decision of this court, but, on the contrary, is in direct conflict with a number of well considered cases, as I have fully shown; and feeling assured that it must, sooner or later, be repudiated, for the reason that it would be impossible to enforce it without leading to great delays and confusion in the trial of causes, and often in palpable injustice, I can not give my assent to it.
Mr. Justice Scholfield : I concur in the foregoing views of Mr. Justice Mulkey.
Mr. Chief Justice Walker : I think the whole question is fully determiued by the cases of Lombard v. Cheever, 3 Gilm. 469, Lonergan v. Stewart, 55 Ill. 44, City of Alton v. Hartford Fire Ins. Co. 72 id. 328, and others in our reports. They show that evidence offered by a party, not in itself pertinent to the issue, may be rejected, unless the party proposing to introduce it shall offer to follow it up with evidence which shall render it pertinent. There was no such offer in this case, and the presumption that the judge decided correctly has not been overcome. There are cases that hold that an action in ejectment is an exception to the rule, but this is not such an action.