Upon the remand of this cause to the Circuit •Court, under the opinion in 33 Ark., 421, it was there tried by a jury upon the issue of payment alone, in which trial the verdict was for the defendant. After motion for a new trial, overruled, the plaintiff again appealed.
rTn9^^™| courtf'1- 3 After the remand, the plaintiff moved fora rule •defendant to verify his amended answer. This answer before this court on the former appeal, and treated as good. Any objection to it was closed by the decision then rendered, It is still insisted upon by counsel in argument, and, as it was passed sub silentio before, it may not be amiss to say, now, that pleadings before justices, whether written or oral, •may be without verification; and when the transcript is removed to the Circuit Court, on appeal, there can be no •objection to allowing amendments on the same terms, under the sound discretion of the Circuit Judge.
|EN®7 * j plea of set-off. As to payment, the evidence on trial was conflicting The •defendant, assuming the burden, introduced some tending to show that, by mutual understanding, he had, at J ° •times, rendered services, and given an order for money, to plaintiff, to be applied in payment of the notes, to an amount sufficient to cover those sued upon. Upon the other hand, 'the plaintiff introduced some to show other proper appropriations of the services and order; and that •nothing had, in fact, gone to the notes in suit, beyond the amounts thereon credited. In the course of the trial the pflaintiff objected to any evidence at all being given by *586defendant, of subsequent services rendered, or moneys furnished, by defendant, without a plea of set-off. The objection was overruled, and it is made one of the grounds for a new trial. The nature of the defense was that the servicesaud order had been rendered and given with a mutual view to the settlement of the notes. Proof of them was essential to the defense; although it was further necessary to show the mutual understanding. There was no error in admitting-the proof, primarily; and the jury were, as we shall hereafter see, properly instructed as to the effect of it, if not connected with proof of acceptance of the services, etc., by plaintiff, as payment.
Upon all the evidence, we would not feel authorized to-disturb the verdict merely upon a comparison of its weight. This rule, of course, has its limits, and must not be construed to give juries unlimited license to render shocking- and unreasonable verdicts, in gratification of predelictions, or prompted by passion or prejudice, merely by availing-•themselves of some dim show of evidence. No more definite-rule can be formulated than this; and each case must always depend upon its own circumstances-. Whilst judges-can not wholly ignore their own reason, and the common sense of mankind, in considering of verdicts, they will, nevertheless, in deference to the peculiar province of juries in our system, concede to them the power of determining for themselves the weight of evidence, under proper instructions as to the law, and without any appearance of undue influence, passion, or prejudice. The practical application of the rule may be in some cases difficult, in which cases it were best to leave verdicts undisturbed. This case does not present any such appearances, at least so manifestly as to annul the verdict. It must be determined on the instructions. Before proceeding to discuss them, we will first dispose of *587some of the other grounds set forth in the motion for a new trial.
One of them was on account of newly discovered evidence. Without going into, detail, it is sufficient to say that the motion does not satisfactorily show due diligence, nor does it appear, from the circumstances, that the matters were of such a nature as might not have, by ordinary diligence, been discovered. A considerable portion of it was cumulative; and, altogether, it does not appear that the Circuit Judge abused his discretion in the refusal.
The principles governing the practice in new trials have been often discussed, and as this case presents nothing new with regard to them, it is not expedient to swell this opinion, upon this point, beyond the mere announcement that we have examined the points, and concur with the ruling of the Circuit Judge.
newDisquancealod on voire. It is alleged, as ground for new trial, that one of jurors was related to the defendant, both by blood and affinity, within the fourth degree, and failed to disclose ... , same upon his examination on voir dire. The motion supported by the affidavit of plaintiff alone, who merely says in general terms, that since the trial he has been informed and believes that the juror was related to the defendant in the fourth degree, without stating what the relationship was.
Affidavit-It would be very unjust to the juror to subject him to the moral imputation of perjury, upon such an affidavit.
The information may not have been correct, and the juror may have had a different opinion of the relationship.
Besides, the objection came too late. There was no showing of fraud intended or wrong done, or collusion 011 the part of defendant. See Daniels v. Guy et al., 23 Ark., 50; Fain v. Goodwin, 35 Ib., 109.
*588 uctions*’ to fina or"prlpmitSmonyit *587Recurring to the instructions, it is necessary further to *588premise that the plaintiff had introduced divers witnesses, who testified that the defendant had, before the commencement of the suit, and since, admitted his indebtedness to plaintiff, and had offered a tract of land in satisfaction. The court, on defendant’s motion, substantially instructed the jury, against plaintiff’s objections, that the burden of proof, under the issue of payment, being on the defendant, must, to justify a verdict in his favor, appear, from a preponderance of evidence, “that he paid to the plaintiff the whole amount due on the notes sued upon, and that the payment, if not made in money, was made by the delivery of property, or performance of labor, which was accepted by the plaintiff as payment.”
But “it is not necessary that he should support his answer by such evidence of payment as leaves no doubt upon the minds of the jury. Pie is entitled to a verdict if, upon the whole testimony in the cause, his answer appears to be sustained by the weight of testimony, however slight ■such weight may be.”
But for the change of expression from “preponderance” .in the first instruction to “ weight ” in the second, the two together would have contained a full, complete, and well formulated statement of the law applicable to the evidence. Preponderance is something more than weight. It is a ■superiority of weight, outioeighing. The words are not synonymous, but substantially different. There is generally a weight of evidence on each side in case of contested facts. But juries cannot properly act upon the weight of evidence, in favor of the one having the onus, unless it overbear, in some degree, the weight upon the other, in their opinion. Doubtless, Plis Plonor meant weight in its comparative sense ; and so persons, used to discriminate the exact import of words, would understand him, in connection with the ■first instruction ; but the mass of even intelligent men seize *589upon the general import of words and particular phrases,, without construing them as qualified by others. It can hardly be said, however, that the charge was erroneous. It was good, taken altogether, but the plaintiff, on his part,, had the right to have any obscurity concerning it so cleared as to prevent the jury from being misled.
This he first attempted by asking the court to instruct the jury that the defendant “must establish by a preponderance of evidence such payment, to the satisfaction of the jury.”
5jio v «- should be on pro-!"|e0r¡ evKloncehis might have thrown the jury upon Scylla in avoiding Charybdis. It is never necessary in a civil case that a jury J J J should be satisfied of the truth of their verdict, in the sense of resting upon it confidently. That principle belongs to criminal law. Civil verdicts should be given on preponderance alone for the party whose evidence, considered altogether, outweighs. that of the other as to the fact in issue ;. or against the one having the onus, if, on the whole, the weight seems balanced. The.modification asked might hhve' led the jury to suppose it necessary for the defendant to-prove payment beyond a reasonable doubt. It was properly refused.
But by another instruction, (the 5th,) the plaintiff asked the court to instruct the jury that the burden was on the defendant to prove the payment by a preponderance of testimony ,- “ and unless the jury believe that such preponderance of testimony exists, taking into consideration all the testimony in the cause, they will find for the plaintiff.”
This instruction was good, and necessary in connection with those given for defendant. The court refused it, and we think committed an error. The instructions given for defendant, if they had not been obscured by the change of language, would have superseded it; but the plaintiff, as it was, had the right to his also.
*590 «8. iNsrnbieoniyto -«ase — missions. Upon the subject, of admissions, the court charged for defendant, against the objections of plaintiff, that they be received with caution ; and if,they should believe s¿a^ements of defendant, relied on as admissions, were made, if at all, long after the execution of the notes sued on, and in casual conversation, and without reflection, they were in themselves “ weak evidence.” “But,” continued the court, “ it is for the jury to consider such statements with all the facts and circumstances of the cause, and so form their opinion of the weight to be attached to them.”
The court refused to instruct for the plaintiff that admissions made by a party against his interest, as to indebtedness, are to be taken against the party making, and that if the jury believe that defendant admitted that he owed all or any part of the defendant’s claim, by offering to pay said claim in property or otherwise, they, will find for the plaintiff. In lieu thereof, the court, of its own motion, an<4 against objections, instructed the jury that if they believed that the defendant admitted his indebtedness to the plaintiff, and proffered to pay such indebtedness in property, or otherwise, but did not do so, such admissions, “if made fully and fairly, and on occasions to call out the truth, and upon reflection, may be considered by the jury as evidence tending to establish such indebtedness.”
The instruction upon this point, asked by plaintiff, is somewhat objectionable in its phraseology. An offer to pay a debt in property or otherwise, may go to a jury as evidence to be considered by them, of an implied admission that it was just and unpaid. It is notin itself, however, conclusive ■or binding. It may have been made to buy peace, or by way of compromise. Or a conscientious debtor might, as •often happens, make such an offer in an uncertain condition of his own mind, as to whether the debt had been paid or *591mot. Such an offer is rather evidence tending to show an •admission, than the means of making a binding admission. It is for-the jury to say. The instruction' requested seems amenable to this criticism, that it might convey to the jury the impression that an offer to settle was in itself an admission, upon finding which, it would be their duty to find for the creditor. The refusal of this instruction could'not be held erroneous.
instruetions to be ££npfiart?ed oase*592 Admissions : Strength or weakness of, as evidence. *591The instruction given on this point, at the request of defendant, that the admissions should be received with caution, etc., and that the statements, under certain hypothetical conditions, were weak evidence, is based upon an instruction given in Prater, ad. v. Frazer and wife approved by this court in 11 Ark., 267. Instructions are not intended to settle abstract principles of law. They are given for the guidance of juxies in the particular case, with refex-ence to the rnony, and it is dangerous to rely upon them as abstract axid immutable principles applicable axrd proper in all cases. That case was one in which the title to slaves was contested, which title was claimed to have originated long before the suit in •axrother State. The-statements of defendant, relied on as admissions, were made five or six years before the trial. Under the circumstances the couxt sustained the instructions to the jury, that statements so made, were “the weakest possible evidence admitted in courts of justice.” The opinion is based upon the old case of Myers v. Baker, Hardin 549, which was not, at all, a case involving the propriety of instructions to a jury, It was a case in chancery, and the remarks were made by the judge, delivering the opinion, •arguendo, ixi estimating the evidence. There is certainly no objection to the reasoning, and intelligent jurors would be apt to pursue the saxne tx*ain. It is not necessary, however, now to question the propriety of the decision in 11 Ark, .(sujora), to the effect that the court might characterize the *592evidence in instructions to the j ury, as weale or strong. Whatever evils may have resulted from the practice have been since precluded by the present Constitution, which in seem-, ing jealousy of the influence of the bench, provides {Art. VII, Sec. 23) that “judges shall not charge juries with regard to matters of fact, but shall declare the law.” It is the exclusive province of the jury, now, to judge, in the-first, instance, of the strength or weakness of any facts to support an issue. In accordance with the spirit of the Constitution this court held in Randolph et al., v. McCain, ad., 34 Ark., 703, that it was improper in a judge to indicate to a jury that the remedy by attachment was a harsh one,, as tending to prejudice their feelings. There is equal mischief to be apprehended from the practice of instructing the jury as to the force of the evidence.
Juiy i o judge of t h o i r weight. Even if such a cautionary instruction were at some times, allowable, we find nothing in this case to justify it. The-evidence does not seem to raise the suspicion that the statements of the defendant, relied upon to prove admissions, were made under such circumstances, as to call for such a,, cautionary charge. The instruction should have left it entirely with the jury to judge of the effect of the statements as it did in the conclusion, but without the preliminary expression of the court regarding its weakness. There was error in giving it as asked for defendant.
We think also that the instruction given, on this point,, by the court of its own motion was too severely qualified.
Statements in the nature of or tending to prove admissions, are always admissible to be considered by the jury, and should be considered, and have such weight as the jury may consider proper, in leading their minds to a conclusion. Juries reasoning for themselves, with their knowledge of human nature, and human motives, and ordinary human conduct, can estimate their force under the circumstances.. *593The instruction given by the court of its own motion, seems to impose upon the plaintiff the onus of showing that the statements were full and fair, and on occasions to call forth the truth, and upon reflection, before they could be considered at all by the jury.
The true rule applicable to this case is, that admissions of defendant, áre competent proof for the plaintiff that the debt was due in whole or in part, but not conclusive, and it must be left to the jury to determine from the evidence whether the statements amounted to admissions, which they will do upon consideration of the time, place, manner and circumstances of the statements ; and whether there be any rebutting circumstances to show that the admissions, if'made were untrue. And these should be left to them without advice of the court as to the force of the testimony.
On account of the mistaken instructions of the court, as above indicated, and their tendency to mislead the jury to the prejudice of the plaintiff, we think a new tidal should have been granted, and that the court erred in refusing it.
Reverse and remand for further proceedings.