It is an express declaration of section 51 of our Practice Act, that “the court in charging the jury, shall only instruct as to the law of the case.”
We regard the first instruction on behalf of the defendant below, as violative of that provision. The court thereby told the jury that, “ as a general rule, the statement of a witness as to the verbal admissions of a party should be received by the jury with caution, as that kind of evidence is subject to imperfection and mistake. The party himself may be misinformed, or may not have clearly expressed his meaning, or the witness may have misunderstood him.”
While it is true that text writers upon the law of evidence and judges of courts may have indulged in such observations as to the quality, value and weight of that species of evidence called verbal admission, yet there is no such rule of law as that laid down by the court in this instance, which would warrant the court in so giving it to the jury as law.
The instruction, in this respect, trenched upon the province, *248of the jury as to vital points in the case. The jury would naturally understand the rule stated by the court to apply to the testimony of the stenographer, as well as to that of the plaintiff. Rafferty v. The People, 72 Ill. 45.
The second instruction for the defendant was, in our opinion, faulty and fatally defective. It told the jury that if they found from the evidence “that Ooney and Beers received the sum of money in question in this suit as trustees under the trust introduced in evidence, and that they used the said sum of money, as such trustees, in liquidation of the indebtedness of said Mark D. Shay, which,they assumed by said trust, then they are not liable to the plaintiff in any sum, and your verdict should be for the defendant.”
The theory of plaintiff’s case, and which his evidence tended to support, was that they borrowed that money of Shay for their own personal benefit, promising to repay it with interest, by giving their individual promissory note therefor, dated June 19, 1884, payable in thirty days from that date. The instruction contained no hypothesis excluding that theory. Coney and Beers were to, and did, under the trust agreement, with the other two creditors having executions junior to that of the bank, like their own, acquire individual interests in the goods sold under the execution in favor of the bank and bought by them, subject to the prior rights of the bank, and incurred individual liabilities in respect thereto. If, therefore, under these circumstances, they borrowed the money of Shay under an absolute promise, on their part, to repay it to him in thirty days, we can perceive no reason why the loan itself would not afford a good and valid legal consideration to support that promise. That instruction was also calculated to mislead the jury, by the rather imperative direction at the end of it, that the verdict of the jury should be for the defendant. Roach v. The People, 77 Ill. 25.
By the third instruction for the defendant, the court told the jury as matter of law, that the burden of proof was upon the plaintiff, and that it was for him to prove his ease by a preponderance of the evidence. “If the jury find that the evidence bearing upon the plaintiff’s case is evenly balanced, *249or that it preponderates in favor of the defendant, then the plaintiff can not recover, and the jury should find for the defendant.”
This instruction likewise ignores the plaintiff’s theory of Beers and Coney having borrowed the money - of Shay and given him their promissory note for the repayment of it in thirty days.
If, instead of that, the instrument which they gave Shay, June 19, 1884, was identical with that given November 19, 1884, except as to date, we are inclined to think that, under the rules stated in Turner v. Railroad Co., 95 Ill. 134, and cases there cited, such instrument could not be regarded as a promissory note, and would not, therefore, import a consideration. If that was the character of it, then under the plea of want of consideration, the plaintiff would be subject to the burden of proving one, in order to recover upon the instrument itself. But if, on the other hand, such instrument was in fact and in law a promissory note, it would import a consideration, and under the plea of want of consideration, the burden would be upon the defendant to support his plea. 1 Wait’s Actions and Defenses, 563, and cases there cited.
The instruction recognizes none of these distinctions, and was therefore misleading and erroneous.
For the errors indicated the judgment below must he reversed and the cause remanded.
Judgment reversed.