Harris v. Reece

10 Ill. 212

• Court: Illinois Supreme Court
• Decided: December 15, 1848
• Status: Published

Opinion

The .Opinion of the Court was delivered by

Treat, C. J.

*

We encounter a fatal objection to this decree at the very threshold of the case. The right of the complainants to invoke the interference of a Court of Equity depends on the truth of the allegations in the bill, that they are the heirs at law of Thomas Botkin deceased. This averment is denied by the answer. There is not a particle of proof to sustain it. Any further investigation of the case would be profitless. It will be in time to do that when the complainants show a right to demand it. The fact that the bill dispenses with the oaths of the defendants to their answers does not relieve the complainants. It was still incumbent on them to sustain by proof the allegations of the bill put in issue by the answer. The answer in such case only ceases to be evidence for the defendants. It still puts in issue the averments of the bill, and throws on the complainants the burthen of proving them to be true. The only dif'ference is as to the amount of proof necessary to do this. The same amount of evidence, which would sustain the material averments of a declaration when denied by a plea, would be sufficient.

The decree of the Circuit Court is reversed with costs, and the complaiinants-’ bill is- dismissed, but without prejudice.

Decree reversed.

Trumbull, J. having been of counsel in the Court below, took no part in the decision.