The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1856-1888, 1875-10-23

Honolulu, March 3lst, 1874. r.t
The defendants counsel asked the Court 10 charge
the jury that " the rendition Of the account was Of
itself no evidence in law tending to show that the
defendants had assumed the payment Of the sugar
in question: which the Court refused 10 do, but
charged that these accounts = we're not conclusive
evidence against the defendants. but that they (the
jury could give them such consideration as they
thought they, in connection with the other circum.
stances Of the case merited."
The exception presents three questions for our
consideration
First--Whether the rendition OF the account was
of itself evidence in law, tending 10 show that the
defendants had assumed the payment OF the singer
in question, and If so, then
Secondly--Whether the Court should have 70
charged the jury, and T aa H~
Thirdly--Whether the Court did 80 charge.
Chief Justice Bigelow, in I6 Gray, sos, says that
1.-THE line which makes and separates the respec-
tive duties and functions of the Court and jury is
certain and well defined. The difficulty arises in
determining on which side Of the line particular
cases fall that is, in deciding whether a case pre-
sents only q question Of law, or involves an inquiry
into facts and the infereDces. 1t may be said gen
orally that it is the duty of the Judge TO decide
whether there is any evidence; of the jury TO deter
mine upon its suaiciency."
It seems to us that the credit made to the plaintiff
in the account rendered on the 3lst Of March, "by
net proceeds of account sales Of sugar, due March
Sd, $1211 15, interest for 81 days at Q per cent.
S8.17," was OF itself evidence tending TO show that
the amount had been paid, and that therefore de-
PENDANTS held themselves liable for it or assumed Il.
1t is not necessary that this should have been O final
account between the parties In order that it have
this force, for this account is complete and final so
far as the sale to Walker g. Allen was concerned, and
upon which settlement could then have been made.
The account furnished to the plaintiff no evidence
that the amount was still unpaid, for the credit TO
the plaintiff was made unqualifedIy on the 3lst Of
March, 81 days after the payment became due.
We hold that it was the duty Of the Court TO rule
on the admissibility of the account and as to its legal
effect, for the fact that these accounts we're rendered
in the shape presented in the declaration was NOT
disputed; and that the Court when il charged the
jury that they were not " conclusive evidence against
the Defendants did, in effect, pass upon the &C.
counts. For the ruling that they we're " not eosek[
sire evidence against the Defendants implies that
they were SOME evidence against them, which with
other evidence in the cause the jury we're 10 consider.
The refusal Of the Court TO charge that the accounts
we're Of themselves 40 EvIDEScE in law tending TO
show that defendants had assumed this debt, coupled
with the charge that these accounts were not eoneIu-
size against the defendants put the accounts to the
jury as some evidence Of the liability Of the defend
ants, the suficiency or conclusiveness Of which evil
dence, taken in connection with the other proofs be-
ing Left to the jury. F-
Exceptions overruled.
ELISHA II. ALLEN,
CHAs. G.. HARRIS,
A. FRANCIS JUDD.
w. G. Jones for plaintiff.
A. s. HartWell for defendants.
Honolulu, Oct. 10th, 1875.