Henderson County IL Archives Court.....Eames, V Blackhart 1850
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 23, 2008, 12:21 pm

Source: Records Of Cases Illinois
Written: 1850

Thaddeus Eames, administrator, etc., plaintiff in error, v. David Blackhart, 
defendant in error.

Error to Henderson.

When a person, just before his death, delivers his money to another to be paid 
over by him to his family, and the person who so receives the money is 
afterwards sued by the administrator of the deceased, on the ground that he 
had not accounted for all the money so received; Held, That it was erroneous 
in the court to instruct the jury in this case, "that it was not incumbent on 
the defendant to account for what the deceased did with his money." That it 
was for the jury, and not the court, to determine whether the facts and 
circumstances in evidence satisfied them that the deceased, at the time of his 
death, had more money in his possession than had been accounted for by the 
defendant; and whether or not there was sufficient prima facie evidence in the 
case against the defendant, to call upon him to explain how it was that he 
received no more money from the deceased. 

Held also, that, as a general rule, it was true that one man was not bound to 
show what another had done with his money, yet that such a state of 
circumstances might exist, as to make it incumbent on a person who would 
discharge himself from liability, to show what another had done with his 
money. Held, also, that it was not the province of the court to draw 
inferences from the evidence, or determine what it does or does not prove. (a)

This was an action of assumpsit, brought by the plaintiff in error against the 
defendant in error, in the Henderson Circuit Court, in February, 1850, and was 
tried at the last April term of said court, before Minshal), Judge, and a jury.

The declaration contained only the common money counts for money loaned, money 
had and received, and also a count for interest on money overdue and forborne, 
and for work and labor. To all of which the defendants plead the general issue.

Evidence was given on both sides which is of a character not easily abridged, 
so as to exhibit a fair view of the case. After the evidence was closed, the 
court, at the instance of the defendant, instructed the jury as follows, to 
wit: "The court will instruct the jury that it is not incumbent on the 
defendant, to account with what Joseph Eames did with his money, and unless 
they believe from evidence, that the said defendant received more money from 
Joseph Eames than he delivered to the plaintiff, they will find for the 
defendant." To the giving which instruction the plaintiff excepted. The jury 
then retired and brought in a verdict for the defendant. The plaintiff moved 
for a new trial, and assigned several reasons. The court overruled the motion 
for a new trial, and rendered judgment for costs against the plaintiff, and 
awarded execution to be paid in the course of administration; to all of which 
the plaintiff excepted. 

He now insists that the foregoing instruction, under the facts of the case, 
was erroneous; that the verdict was contrary to evidence, and that on both of 
these grounds a new trial ought to have been granted.

Browning & Bushnell and R. S. Blackwell, for plaintiff in error.

An instruction which assumes the existence of a fact, is erroneous: Reed v. 
Hurd, 7 Wend,, 408; Fitzgerald v. Alexander, 19 Wend., 402; Lightburn v. 
Cooper, 1 Dana, 273; Dallam v. Handley, 2 A. K. Marshall, 424; Adams v. 
Tiernan, 5 Dana, 395. So an instruction which withdraws from the consideration 
of the jury any proof tending to establish the principal fact: Sullivan v. 
Enders, 3 Dana, 67; Planters' Bank v. Bank Alexandria, 10 Gill. & John., 357; 
Tiffany v. Savage, 2 Gill., 129; Speed v. Hewen, 4 Mo. Rep., 356. So an 
instruction calculated to divert the attention of the jury from the facts upon 
which their verdict ought to rest: Reed v. Greathouse, 7 Mon., 560; 11 Wend., 
83; 9 Conn., 107; 12 Pick., 177; 5 Day, 479; 5 Mass., 365. Province of the 
jury and court ably discussed in the following cases: Anderson v. State, 2 
Kelly, 379; Steel v. Glass, 1 Kelly, 486-9.

Williams & Lawrence, for defendant in error: 

The credibility of witnesses is a matter peculiarly within the province of 
juries, and a court will not set aside a verdict as against evidence, except 
in those cases where the verdict "strikes the mind, at first blush, as 
manifestly and palpably contrary to the evidence:" Dawson v. Robbins, 5 Gil., 
72; Kincaid v. Turner, 2 Gil., 620; Evans v. Fisher, 5 Gil., 572.

Trumbull, J. Joseph Eames, a resident of Oquawka, on his return home from St. 
Louis, died suddenly of the cholera on board a steamboat upon the Mississippi 
river. Just before his death he delivered up to the defendant his money, and 
requested him to keep and deliver it to his family. The deceased and the 
defendant had gone down to St. Louis together a few days previous, were both 
residents of Oquawka, and, so far as the evidence shows, were the only persons 
from that place upon the boat at the time of Eames' death. 

After his return, the defendant paid over to the plaintiff, who is 
administrator of the said Joseph Eames, deceased, two hundred and fifteen 
dollars in gold, and twelve dollars in paper money. This suit was brought upon 
the ground that defendant did not pay over all the money he received from the 
deceased.

A variety of facts were proven upon the trial, mostly of a circumstantial 
character, tending to show that the deceased had more money with him, and that 
the defendant received a larger sum than he had accounted for.

The defendant requested the court to instruct the jury as follows: "That it is 
not incumbent on the defendant to account for what Joseph Eames did with his 
money, and unless they believe from the evidence, that the said defendant 
received more money from Joseph Eames than he delivered to the plaintiff, they 
will find for the defendant." This instruction the court gave, and the giving 
of it is now assigned for error.

That one man is not bound to show what another has done with his money, is 
true, as a general proposition, and yet such a state of circumstances may 
exist as to make it incumbent on a person, who would discharge himself from 
liability, to show what another has done with his money.

The first part of the foregoing instruction, as applied to the facts and 
circumstances of this particular case, was, we think, erroneous, for the 
reason, that it assumed that the evidence offered was not sufficient to 
justify the inference of such a prima facie case against the defendant, as to 
call upon him to explain how it was that he received no more money from Eames. 
We do not say that such a case was made out, and the Circuit Court had no 
right to say there was not, but should have left the jury to determine from 
all the circumstances in evidence, whether more money had been traced to the 
possession of Eames just before his decease, than the defendant had accounted 
for, and if there had been, whether enough was not shown in connection with 
the other evidence to make it incumbent upon the defendant to show what became 
of the balance of the money that Eames had. 

The substance of the instruction was, that the plaintiff's evidence was 
insufficient to warrant the inference, that Eames, about the time of his 
decease, had more money than defendant had paid over, so as to throw upon him 
the burden of accounting for such excess. Had the defendant been able to show 
that Eames shortly before his death, lost, paid out, or in any manner used any 
considerable sum of money, such circumstance would have been greatly in his 
favor. That he was bound to introduce such evidence we do not mean to 
intimate. He was clearly not liable for more money than he received from 
Eames, but in determining how much he did receive, it was for the jury to say 
whether the evidence satisfied them that Eames had in his possession, about 
the time of his decease, a larger sum of money than defendant had accounted 
for, and which must have gone into his possession, unless he could show that 
Eames otherwise disposed of it.

The instruction was calculated to mislead the jury, by withdrawing from their 
consideration part of the evidence in the case.

It is not the province of the court to draw inferences from the evidence, or 
determine what it does or does not prove, and if it do so in a manner 
calculated to mislead the jury, the judgment will be set aside and a new trial 
granted.

Judgment reversed and cause remanded.

Judgment reversed.

---------------
(a) Sherman v. Dutch, 16 Ill., 283; Iglehart v. Jemegan, Id., 513, and cases 
cited, accord. The jury should be left to draw their own conclusions from the 
evidence: Ashlock v. Linder, 50 Ill., 169; Graff v. Simmons, 58 Ill., 440.

Additional Comments:
Reports of Cases Determined in the Supreme Court of the State of Illinois from 
November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor 
at Law. Volume XII. Reprinted from the Original Edition, with Annotations by 
William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 
1881.

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