The Union Nat'l Bank of Chicago v. Baldenwick

• Citation: 1867 WL 5294,45 Ill. 375
• Parties: THE UNION NATIONAL BANK OF CHICAGOv.LEWIS H. BALDENWICK.
• Decision Date: 30 September 1867
• Court: Supreme Court of Illinois

45 Ill. 375

1867 WL 5294 (Ill.)

THE UNION NATIONAL BANK OF CHICAGO

v.LEWIS H. BALDENWICK.

Supreme Court of Illinois.

September Term, 1867.

APPEAL from the Superior Court of Chicago.

The facts in this case fully appear in the opinion.

Messrs. FULLER & SHEPARD, for the appellant.

Mr. S. K. DOW, for the appellee. Mr. JUSTICE WALKER delivered the opinion of the Court:

This action was originally commenced by Lewis H. Baldenwick, before a justice of the peace, in Cook county, against The Union National Bank of Chicago, to recover the amount of a one hundred dollar counterfeit bank bill. A trial was had before the justice of the peace resulting in a judgment in favor of plaintiff. An appeal was prosecuted to the Superior Court, a trial was there had, resulting in a similar judgment; and the case now comes to this court on appeal. It is urged that the evidence in the case does not sustain the verdict. There was evidence in the case tending to show that appellant had paid the bill to appellee and that it was counterfeit. There was likewise evidence tending to contradict that testimony. In such a case, it is the province of the jury to find what, if any thing, the evidence proves. A plaintiff, as in this case, holding the affirmative of an issue, must prove it. Until established by proof the negative is presumed to exist. If on the trial the evidence preponderates in the slightest degree in favor of the negative, or is equally balanced, or where from the evidence the jury are unable to say, that it preponderates in favor of the affirmative, then the presumption of the truth of the negative of the issue is not overcome. It is not for the defendant to prove the negative, but it devolves upon the plaintiff to prove the affirmative before he can recover. The defendant is bound to prove nothing until the plaintiff has proved the affirmative by at least prima facie evidence; and then, and not till then, the defendant, to defeat a recovery, must overcome plaintiff's evidence by rebutting proof. Before appellee was entitled to recover in this case, he was bound to prove by a preponderance of evidence that the bill was spurious; that he received it from appellant and offered to return it in a reasonable time. He was required to identify it by at least a preponderance of evidence, and of the weight of the evidence the jury were the judges. In the view which we take of the case, we deem it improper to discuss the weight of proof.

On the trial in the court below, appellant offered to prove that the bill in question was never received into the bank by the receiving teller; and by the note teller for the preceding year, that it was not received into the bank by him; but the court refused to permit the making of such proof. As a general rule, evidence tending to prove the issue involved is competent and admissible. If, however, it is so remote that it does not appear to have an obvious tendency to elucidate the question in dispute, it should be rejected, as calculated to confuse the case and unnecessarily to incumber the record. A party in establishing his claim or defense, is not, by the rules of evidence, restricted to either circumstantial or to positive evidence. He has the right to avail himself of either, or both, as they may be at his command and he may choose to...