| Ill. | Apr 15, 1863
delivered the opinion of the Court:
We think the court properly overruled the motion to suppress the deposition of Stead. Although the certificate of the magistrate does not state at what hour the deposition was taken; yet he appends the notice, and states that the deposition was taken in pursuance of the notice. The deposition was properly admitted. * .
The principal question is upon the evidence. This certainly leaves it doubtful whether the goods were lost by the defendant or by the Ohio & Mississippi Railroad Company. The goods were delivered to the latter in Cincinnati, in a box, with other goods. That box was delivered to the defendant at Sandoval, who receipted for it in good order, and it was delivered to the plaintiff at Freeport, in apparent good order, but on examination these goods were missing. Row, it is certain that the goods were abstracted from the box in trwnsitu between Cincinnati and Freeport; and while we cannot say certainly, that they were taken out after the box left Sandoval, yet there is proof tending to show this, and also it tends to show a loss by the other company; and in this state of the case it was for the jury to say, or for the court, in the place of a jury, to say . which most probably lost the goods. If it were necessary to show a preponderance of proof against the defendant, that is done by the production of the receipt, which states that the goods were received at Sandoval in good order, without qualifying it by the word apparent. If the goods had been previously abstracted, then the box was not in good order. It is true that this receipt was not conclusive that the box was in good order, and it was competent to show that it was not; but . it threw the onus on the defendant to show that fact. If they did show that fact, they showed a case which would make the other company liable; and to assert that, is to admit the liability of the defendant, for, independent of the receipt, the evidence is as strong against the defendant as it is against the first company. In a doubtful case, as this certainly is, we are not disposed to disturb the finding below.
The judgment is affirmed.
Judgment affirmed,