The opinion of the Court was delivered by
Moses, C. J.It is difficult to understand, with precision, from the suggestion of errors as stated in the brief, and the report of the Judge in regard to it, the points of the charge to which error is assigned.
While the first plea only puts in issue the execution of the sealed note sued on, the comprehensive language employed in the second, filed without objection as to form, would make the defence tendered thereby want of consideration for the instrument, and fraud, imposition and undue influence in obtaining it.
Evident latitude appears to have been extended in the introduction of testimony, and hence, probably, the confusion between the apprehension of the counsel and the report of the Judge as to *252what he did charge as the law of the case. This Court, however, must be governed by his report.
The first and second exceptions will be considered together.
The first, “because there was error in the presiding Judge in saying to the jury that the whole law of the case was embraced in the defendant’s second plea.”
We cannot perceive how the plaintiffs (here) could have been prejudiced by such ruling, for the effect of it was only to direct the attention of the jury, after proof of the factum of the note, to the issue made by the pleadings. Standing alone, after the mass of evidence which had been introduced on both sides, we do not see that it is properly the subject of objection.
The second exception is, however, in our view, well taken, and if the remarks of the Judge complained of in the first were followed by the ruling set forth in the second, wc can readily understand how the jury might have been misled by supposing that they were restricted alone to an inquiry as tothemental soundness of the intestate.
The instruction to the jury, “that the note and release were valid and conclusive, unless the mind of the olcl lady was unsound,” precluded and prohibited them from responding to the issue made under the second plea, unless the Judge intended to intimate that no fraud, imposition or undue influence was established by the evidence. This would have been expressing his opinion on the facts, which, by law, he is not permitted to do, and we are not to suppose that he so intended.
The jury might have concluded she was of sound mind, and yet it was in their legitimate province, if so persuaded by the testimony, to conclude that the note had been obtained by means which the law would not sanction or uphold. Fraud, imposition or undue influence would vitiate an. instrument executed by a person whose soundness of mind had never been questioned.
It was for the jury to decide whether the evidence satisfied them that the note was procured through either of the agencies averred in the plea. If there were badges of fraud disclosed by the proof, with proper explanations as to what the law considered their effect, it was for the jury to pass upon them. There might be presented in a case such unexplained acts, circumstances or incidents as would justify the Judge in holding that, in law, they amounted per se to fraud. If, however, they were complicated or contradictory, it was for the jury to draw their conclusion, and apply the law as they received it from the Bench.
*253The instruction of the Court, as set forth in the second exception, was error, and we adjudge the said exception to be well taken.
The fifth ground assigns as error “the refusal of the Judge to charge that if the jury were satisfied that the plaintiff (below) was agent of defendant’s intestate, the burthen of proof lay with the plaintiff to show a settlement at the date of the note and release,” and this, we hold, is not well founded. An agent is one so necessary in the business and transactions of mankind, involving, with his principal, a relation of such implicit confidence, and imposing therefrom a position of such commanding influence, that the guards and securities with which the Courts of Equity surround those whose rights and interests are subject to'some trust, either express or constructive, to some extent attach to a person who is empowered by another to act for him, either generally or in a particular matter. These Courts enforce what has been not inaptly called “ a technical morality and, where an advantage has been gained by a breach of confidence, interfere by acting directly on the instrument, and grant relief by avoiding it. In- general, they throw the burthen on him who claims the gift, or bounty, or benefit, to show the perfect fairness of the transaction. Unreasonable advantages are not upheld, unless it is apparent that the utmost good faith has been exercised where the confidence has been reposed.
Notwithstanding the application by equity of the principles which it thus administers to transactions between agent and principal, it has not carried the doctrine to the extent of requiring the agent, where a written acknowledgment of a sum due and owing to him has been made by the principal, to show the good faith and honesty of the transaction, before it has been in some way assailed by proof.
It holds a different rule as to the burthen of proof, where obligations purporting to be for value received are the subject of its inquiry.
Though the agent may be considered as a trustee, and Ms acts viewed with jealousy, yet he will be entitled to credit for notes of his principal, payable to himself during the agency, without showing their consideration, unless there be evidence to impugn them.- — Poag vs. Poag, 1 Hill Ch., 285; Lever vs. Lever, 2 Hill Ch., 158; Wardlaw vs. Gray, Dud. Eq., 85.
In Poag vs. Poag, Harper, J., in delivering the opinion of the Court, says: “A note given is evidence of an account settled, and a balance acknowledged. In such a case as the present, when the principal *254is shown to be a weak man, hardly capable of transacting his business, such transactions are regarded with jealousy, as in the instance of a guardian settling with his ward just after he comes of age; and slight evidence will be sufficient to throw the burden of proof on the agent.” ■ .
If such is the exception in Equity, how-stands the matter in the Court of Law, as applicable to the present case? The note is not only under seal, which, of itself, imports a consideration, but it expresses on the face to be for value received. According to the rules of pleading there prevailing, when the plaintiff proves its execution he has done all they require, and the onus is cast on the defendant to avoid it by such testimony as may be admissible under its plea, to which the plaintiff has the right to reply. The action is brought to enforce the contract, according to the terms of it; and yet it is insisted that, after proving it, which would entitle the plaintiff to a verdict, if the case rested there, he is not only to assume a further burthen, but one which the course of the pleadings throws on the defendant.
It does not appear to the Court how, under the state of the pleadings, the plaintiffs in error can raise any question touching the effect of the release. No set-off was pleaded, or notice of discount given by them. If the note was held valid by the jury, the defendants below could not reduce the amount to which the plaintiff there was entitled, by showing any indebtedness to their intestate for money received on her account or otherwise. It might have been used as a circumstance, the weight of which was to be estimated by the jury, connected with the other testimony under the special plea, but could be of no avail in reducing the amount claimed under the note, if the proof established its validity.
We are not impressed with the error assigned in the fifth exception.
Although the presiding Judge reports that he did not charge the jury as stated in the third exception, to wit: “That the opinions of the subscribing witnesses to the note and the medical witnesses should be alone received as testimony;” yet he says “that his instructions were that subscribing witnesses and medical persons alone could speak as to their opinions, and that the other witnesses could only testify as to facts upon which the jury were to form their opinion.”
The opinions of the subscribing witnesses to a will are allowed where the question involves the soundness of the mind of the testa*255tor at the time of the execution of the will.' — 1 Green. Ev., § 440. They are as watchers, designed by the law “to ascertain and judge of his capacity.” The very nature of the act in-Avhich they participate, to make the instrument complete as to form, directs and leads their attention to his mental condition. The rule has never been extended to other instruments, and certainly not to those whose valid execution does not require a subscribing witness. Experts, too, are allowed to give their opinion in the particular matters as to which they are supposed to be skilled; but those who are not presumed to have acquired, by study or practice, any higher claim to knowledge than the unlearned or inexperienced, though they may testify to facts from which they may deduce and express an opinion, yet such mere opinion is not, of itself, entitled to acknowledgment or respect, and is only appreciated and accepted by the jury if the conclusion is the same to which they would arrive from the influence of the facts disclosed. — See Seibles vs. Blackwell, 1 McM., 56.
The ruling thus made, under the exception referred to, is not sustained by this Court.
It is ordered, that the judgment be set aside, and the cause remanded to the Circuit Court, with instructions to issue a venire facias de novo.
Willard, A. J., concurred.