Dimes Savings Institution v. Allentown Bank ( 1869 )

The opinion of the court was delivered, March 25th 1869, by

Agnew, J.

This case was not properly presented to the jury. The judge thought it proper to read to the jury the opinion of this court reversing his former judgment and to submit the case thereon. Why he did so, it is difficult to know. The opinion of this court upon the case as exhibited in the former trial was not a fair presentation of the case on the second trial. It was in no sense a charge to the jury, its purpose being wholly different. In the first trial the judge had taken the case away from the jury, without submitting to them the facts on part of the plaintiff bearing on the disputed credit. We thought he erred in this, inasmuch as there were facts and circumstances the plaintiff was entitled to have submitted for consideration, tending to show that Cronise & Co. were the agents of the Dimes Bank instead of the Allentown Bank, and that the credit of $493.22 might have resulted from their fraud as agents of the Dimes Bank. It became necessary, therefore, to state.in our opinion these circumstances, in order to show the possibility that the Dimes Bank and not the Allentown Bank might be responsible for the fraud of Cronise & Co. Hence, the very purpose of the opinion made it one-sided, and was to develop the strength of the evidence which the judge had dismissed as unimportant; and not to state that of the other side, which might have been its counterpoise.. When that opinion, therefore, was converted into a charge to the jury, it was not a fair presentation of both sides of the case, and the error was greatly augmented by omitting to answer the defendants’ points. These errors of commission and omission made the charge too limited, and tended to exclude from a full consideration the views of the evidence taken by the defendant. • The error was heightened when the judge told the jury that the evidence in this trial did not, in any substantial particular, vary from what it was. on the former trial. Whether this is true we do not remember, and certainly the jury had no means of knowing. The effect of the whole charge was to. lead the jury to believe that the case was precisely that upon which we had passed, and had been decided by this court in favor of the plaintiff. It left very little room for a successful defence.

The judgment is therefore reversed, and a venire facias de novo awarded.