majority">Mr. Justice Sheldon

delivered the opinion of the Court:

On the trial of the issue in this case, which was one of fraud, a portion of one instruction given for the appellees, was as follows:

“The court further instructs the jury for the defendants, the surviving children of Ashbaugh and other defendants, that the law never indulges in any inferences or presumptions of fraud, but fraud must be proved directly, or by such facts and circumstances as would make the conclusion reasonable and irresistible in the mind of a fair minded and reasonable person, that a fraud had been committed by a collusion of parties.”

There is no warrant in the law for saying that testimony, in order to the proof of any particular fact, should possess such a degree of force as to be irresistible.

The jury, in this case, might have deemed themselves able to resist the conclusion of fraud, and so have considered that the evidence did not come up to that measure of strength which the instruction might have led them to suppose it was required to have. Whereas, had it been of sufficient force to produce in the mind nothing more than a mere preponderance of assent in favor of the fact in dispute, it could not have been pronounced insufficient. Fraud need only be proven like any other material fact. Reed v. Noxon, 48 Ill. 323.

What circumstances will amount to proof can never be matter of general definition; the legal test is, the sufficiency of the evidence to satisfy the understanding and conscience of the jury. 1 Stark. Ev. 514.

For error in giving this instruction, the decree is reversed and the cause remanded.

Judgment reversed.

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