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Syllabus.

the meaning of the constitution." Certainly further consideration of the subject is not necessary. It could hardly be profitable.

What may be the road laws of the state, in view of this conclusion, we need not attempt to determine, for in no condition could we be relieved of the conclusive effect of two propositions whose soundness all recognize: first, the legislature may not legislate contrary to the provisions of the constitution; second, the courts may not legislate.

Judgment affirmed.

CREW, C. J., SUMMERS, SPEAR, Davis and Price, JJ., concur.

GINN, ADMR., V. DOLAN.

Suit on promissory note-Defense of want of consideration

Burden of proof on plaintiff-Evidence. Where in a suit upon a promissory note the defense is that the

note was given or obtained without a valuable consideration, the plaintiff has the affirmative of the issue and the burden of proof rests upon him, at every stage of the case, to show a consideration for the note, by a preponderance of the whole of the evidence adduced on the trial. (Klunk v. The Hocking Valley Railway Co., 74 Ohio St., 125, approved and followed. Dalrymple, Admr., v. Wyker, Admr., 60 Ohio St., 108, distinguished.)

(No. 11192—Decided November 9, 1909.)

ERROR to the Circuit Court of Cuyahoga county.

The facts are stated in the opinion.

Argument for Plaintiff in Error.

Messrs. Blandin, Rice & Ginn, for plaintiff in

error.

Our contention is that while the introduction of the notes in evidence made a prima facie case for consideration, it did not shift the burden of proof upon all the evidence relating to that issue to the defendant and require him to establish by a preponderance of the evidence that the notes were without consideration.

It has been a very common error for the courts of this and other states in their statements of the law to fail to discriminate closely between the burden of proof upon the whole case, and the state of proof at a particular time in the progress of the trial. This error very frequently takes the form of stating that upon certain proofs being introduced, the burden shifts from one side to the other, which is upon all hands conceded to be an inaccurate statement of the law; what does in fact happen is that upon the introduction of certain proofs which are sufficient to make a prima facie case, the burden of producing countervailing proof is cast upon the other party; but the burden upon the whole case and all the evidence still remains upon the party having the affirmative.

This niisuse of language has not been confined by the courts to the statement of the law with reference to the burden of proof upon the question of consideration for a promissory note; but similar statements have been made with reference to every other kind of case which involves a presumption sufficient to make a prima facie case; as, for instance, the presumption of negligence arising from

Argument for Plaintiff in Error.

the occurrence of an accident of a particular character or occurring in a particular way; the courts have said repeatedly as to such cases that upon proof being made by the plaintiff of the occurrence of an accident of that character or of its occurrence in that particular way, the presumption made a prima facie case in favor of the plaintiff, and that the burden of proof at such point in the progress of the case shifted to the defendant, and he was required to prove by a preponderance of the evidence that he exercised due care and was not guilty of negligence. Railroad Co. v. Mowery, 36 Ohio St., 418.

But the general rule would seem to be well established in negligence cases by an almost unbroken line of authority, that to rebut and destroy a mere prima facie case, the party upon whom rests the burden of repelling its effect need only produce such amount or degree of proof as will countervail the presumption arising therefrom. In other words, it is sufficient if the evidence offered for that purpose counterbalance the evidence by which the prima facie case is made out or established; it need not overbalance or outweigh it. Klunk v. Railway Co., 74 Ohio St., 125; Gibbs v. Bank, 123 la., 742; Scott v. Wood, 81 Cal., 398; Poucrs v. Ruissc!l, 13 Pick., 69; Heinemann v. Heard, 62 N. Y., 448.

This latest decision by our supreme court in Klunk v. Railway Co., supra, upon the subject conclusivelv settles the proposition in Ohio, that notwithstanding the plaintiff may, by force of a presumption or by evidence adduced, have established a prima facie case of negligence against the

Argument for Plaintiff in Error.

defendant, still that the burden rests upon the plaintiff where there is evidence tending to rebut this presumption to establish the fact of negligence by a preponderance of the evidence, and we are unable to see wherein such a case differs in any respect from the case of a presumption of consideration arising from the introduction in evidence of a promissory note duly executed.

We do not understand that any court has ever given the presumption attaching to a promissory note, that it was upon a sufficient consideration, when introduced in evidence, any other effect than to make a mere prima facie case. All that the defendant here was required to do was to rebut and destroy a mere prima facie case, and only produce such amount or degree of proof as would countervail the presumption arising therefrom. In other words, it was sufficient if the evidence, offered for that purpose, counterbalanced the evidence by which the prima facie case was made out and established; it did not need to overbalance or outweigh it. Daniels on Negotiable Instruments, Section 164; Bruyn v. Russell, 60 Hun, 280; F. L. & T. Co. v. Sicfke, 144 N. Y., 354; Lamb v. Railroad Co., 46 N. Y., 271; Whitlatch v. Casualty Co., 149 N. Y., 45; In re Pinkerton's Estate, 99 N. Y. Supp., 492; Conney v. Macfarlane, 97 Pa., St., 361; Stevenson v. Gunning, 64 Vt., 610; Solomon v. Huey, 1 Tex. Unrep. Cases, 265; Bank v. Seymour, 64 Mich., 61; Paton v. Coit, 5 Mich., 510; Carrier v. Cameron, 31 Mich., 373; Conley v. Winsor, 41 Mich., 253; Search v. Miller, 9 Neb., 26; Brown v. Iright, 17 Ark., 9; Prescott v. Johnson, 8 Fla., 391; McCallum v. Driggs, 35

Argument for Defendant in Error.

Fla., 277; Small v. Clewley, 62 Me., 155; State v. Flye, 26 Me., 312; Tarbox v. Steamboat Co., 50 Me., 339; Bourne v. Ward, 51 Me., 191; Best v. Bank, 85 Pac. Rep., 1124; Bogie v. Nolan, 96 Mo., 85; Delano v. Bartlett, 6 Cush., 364; Powers v. Russell, 13 Pick., 69; Jennison v. Stafford, 1 Cush., 168; Burnham v. Allen, 1 Gray, 496.

Messrs. Kerruish & Kerruish, for defendant in error.

We submit that in a suit on a promissory note where the defendant sets up in his answer want of consideration, the burden is on him to establish this defense by a preponderance of the evidence.

This is, and has always been, the law in Ohio. Whatever the rule may be elsewhere, no matter how great the weight of authority in other jurisdictions, the law in Ohio on this question has long been settled and established and has been affirmed as late as 1899 in the case of Dalrymple v. Wyker, 60 Ohio St., 108.

From the earliest history of Ohio down to the present day, it has not been necessary for the petition in a suit 'on a promissory note to contain an allegation of consideration. Sterling v. Kious, 7 Ohio (part 2), 238; Section 3171w, Revised Statutes.

If the allegation of consideration is not a necessary allegation in the petition, then the plaintiff need not prove it to make out his case. Phillips on Pleading, Section 477; Dugan v. Campbell, 1 Ohio, 115; Richmond v. Patterson, 3 Ohio, 369; Mors v. McCloud, 2 Ohio, 5; Ring v. Foster, 6 Ohio, 279; Murplıy v. Hagerman, Wright, 294.

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