35 Ill. 310 | Ill. | 1864
delivered the opinion of the Court:
At the hearing of a suit in equity for the foreclosure of a mortgage, if the sum due thereon is not admitted, the note or other written evidence of the debt secured should be produced or its non-production accounted for. Ryan v. Dunlap, 17 Ill. 40; Reeve v. Tilden, 18 id. 77; Lucas v. Harris, 20 id. 165.
A copy of the mortgage was attached to, and made a part of the bill; and the only question for our consideration is, whether the instrument produced is the one described in the mortgage. The instrument described in the mortgage is a promissory note dated the 14th of August, -1858, for the' sum of twenty-five hundred dollars, and payable on the 1st day of April, 1860, by draft, on some banking house in the city of Hew York,"current rate of exchange, and interest at the rate of ten per cent., payable in the city of Hew York on the first day of April annually in like manner with the principal.
The instrument produced at the hearing is an obligation under seal in the penal sum of five thousand dollars, conditioned for the payment of twenty-five hundred dollars on the 1st day of April, 1860, by draft on some solvent bank in the city of Hew York, to be sent to the said Titman, with interest at the rate of ten per cent., payable on the 1st day of April annually, in like manner with the principal. The instruments were of a different nature. Both instruments were to be discharged by a draft on Hew York. If the draft was worth less than its face at the place where the instruments were to be paid, the one required payment of the current rate of exchange between that place and Hew York, and the other did not require it. We cannot say that instruments of a different nature, and requiring payment of different amounts are the same.
The decree of the court below must therefore be reversed and the cause remanded.
Decree reversed.
