#### Bank of Newbern v. Pugh.

From Pitt.

new trial is moved for, on the ground that a verdict is contra ry to law, and the charge of the Court below is not erroneous as to the law, this Court cannot grant a new trial, for it has not the power to ascertain that the 'verdict is contrary to law. This case

coming before this Court a second time,* it appeared from the statement, that on the new trial which took place pursuant to the former decision of this Court, Marcus C. Stephens, the Cashier of the Bank, stated as follows&emdash;-that David Smith was, at the time of his death, a large debtor to the Bank ; the President of the Bank, after a consultation with the Directors, in- formed Mooring, the administrator of Smith, that he was at liberty to take bonds with good securities 1‘roin the purchasers, at the sale of Smith’s effects, payable to the said President and Directors, and that they would re- ceive such of the bonds as they should approve in pay- ment of Smith’s debt; that the bond now sued on was one of those taken in pursuance of such agreement, and was offered to the Bank, by Mooring, in satisfaction of one of his intestate’s notes, and the Bank refused to re- ceive it, and the Cashier, by direction of the Bank, re- turned it to Mooring to do with it as he pleased. Ste- phens farther stated, that the Bank refused to receive • Vide ante Yol. *390the bond when offered by Mooring as above, because if was JJ0^ thought to be as well secured as Smith’s note, in lieu of which it was offered; but it had indulged Mooring fox' a portion of his intestate’s debt, awaiting the result of this suit. It was further proved by Plain - tiff, that it was made an express ’condition at the sale of Smith’s effects, by Mooring, that the purchasers should give bond with security, in the form of that now sued ora. To such of the evidence of Stephens as related to the authority given by the President, in behalf of himself and the other Directors, to Mooring, to take bonds payable to them, the Defendant objected, on the ground, 1hat au ordinance of the Board of Directors, made according to the provisions of the acts establishing the Bank, was necessary to constitute him an agent for that purpose ; but the objection was overruled by the Court.

Badger, Judge, who presided, charged the Jury as follows :

The decision of this case on the plea of the general issue, depends on the enquiry, has there been a sufficient delivery of the bond ? It is contended by the Plaintiffs, tliat Mooring was their agent, entrusted to take bonds for their use, which is denied by the Defendant. If Mooring was such an agent,, then the bond when takes by him, was ipso facto, delivered to the Bank and became the Defendant’s deed, and cannot be affected by any subsequent disagreement. If Mooring was not an agent for the Bank for this purpose, but a mere stranger, then the delivery to him for the use of the Bank did not ipso facto, become a delivery to the Bank, but was a delivery to them or not, according to their treatment of the act of Mooring. If the Bank refused merely to accept the bond as a satisfaction or payment of Smith’s debt, and did not reject it altogether,bat accepted it, exceptas to the satisfaction, then it became the Defendant’s deed, and the right of action vested in the Bank. But if the Bank refused to ratify what had been done by Mooring, not only as to the *391.¿¡million of satisfaction, but also in taking a delivery of the bond to their uw, or in other words, rejected the bond generally, then it is not the deed of the .Celendauí, and the Plaintiffs cannot succeed in this action — aud the Court left it to the Jury upon the evidence, what the facts were.

The- Jury returned a verdict for the Defendant, on the plea of non esl faeiwm. A new trial was moved for, because the verdict was contrary to law and evidence, ami also on the ground of misdirection of the Court 5 it was refused, and from the judgment rendered for the Defendant, Plaintiff appealed.

Gaston, for the Plaintiff,

contended he -was entitled to a new trial on two grounds, 1st, because the verdal contrary to law, and it war; the duty of the J A-iZff rectit — (3 Burr. 151G — 2 ib. 1216 — 1 'Burr. SOtfe™l Law Sepas, 542- -The cases of, Justices v. Cnuiwfordtífj$$ee%\;)lv\Jii\ v. Tailor — and Love v. Wall, 1 .Hawks9 Ilepjtt 2d, the Jury was informed as to the law. They sho^kí-1 í JiP' been told, that' if Mooring was permitted to ntfcajjif. bond, as Stephens swore, it was an inference of law tlnu he was an agent, and the delivery to Mooring was a sufficient delivery. When an inference is to- be drawn from facts, which is simply an inference of right reason, it is an inference 01 lam, not of fad. It was a direct and positive, inference of law, that such a delivery as was proved, was a delivery to the Bank, and it should not have been left to the Jury, — (1 Mmoles’ Hep. 201.)

Seawell, contra,

contended that the charge of the Court below violated no principle of law that the law of this, as of every other case, depended on the facts $ the facts were found by a Jury, and tike Court could not, for that reason, grant a new trial.

Me also took the ground, that Mooring was not the legally constituted agent óf the Bank, because a corpora*392tion could not make an agent by parol — it could only be done by a corporate act, evidenced by the common seal — ■ (i Blackst. Com. 475 — 2 Crunch. 168) The act of incorporation empowers not less than five Directors to do business ; they can act then in no other mode than that pointed out, and no ordinance or vote of the hoard, pursuant to the 1 ] th section of the act of incorporation, (1804) shews that authority was given to Mooring. — (2 Johns. 109 — Beaitic v. Marine Insurance Company.)

Lastly, he objected that the Bank had no authority to deal in such paper as this — (see 1 Sarahs’ Rep. 203.)

Gaston, in reply.

The Judge did not properly leave the matter to the Jury. There were two enquiries, 1st, Was Mooring an agent ? 2d. Was the bond absolutely refused ? In regard to the first, the only enquiry of fact was, should Stephens be believed ? In regard to the second, there was, besides this, another enquiry, did Stephens prove a total or partial rejection? The Judge confounded what this Court had said on the second point, with what it had adjudged in regard to the first— (1 Hawks’ Sep. 203.)

As to the objection that parol evidence, of the authority to Mooring, should not have beén received, if it be well founded, it applies to the whole of Stephens’ testimony, and it was not competent for the Defendant who introduced Stephens, to prove by parol, a transaction which should have been evidenced by record, to require his witness not to tell the whole truth.

But the authority might he given by parol — (7 Cranch, 299 — 12 Johns. 227.) As to the last objection, if it be good, the 7th, 11th, and 12th sections of the act of incorporation are perfectly unmeaning.

*

Vide ante Vol. I, page 198

Hall, Judge.

I see nothing on the record in this case, to authorise the Court to grant a new trial. No question of law is appealed from. The charge of thq *393Court below appears to be quite correct, and of coarse, I. think the rule for a new trial should be discharged.

Henderson, Judge.

We are called 'apon to grant a, new trial in this case, not because upon the record, tlsa liefeiííLmí is not entitled to judgment: not far error iu law, in the charge of the presiding Judge, for to that no exception can be taken ; but for iliac the Judge- below should Smvo granted a new trial, because the verdict was contrary to law ; for it is our duty to revise and correct Ids errors of every description. But it is believed, that this error of the Judge, if it he one, is not examinable by tills Court, for waul of power to ascertain the fad that the vcMid is contrary to law. it is true, that the Judge below, having a power to set aside the verdict and grant a new trial, because the Jury have found contrary to law, or contrary to evidence, has, us necessarily incident thereto, the power to raise the veil which separates hint from the Jury, and look into the evidence $ but between this Court and the evidence, there is an impenetrable wall; and the Judge below cannot communicate to us Ms view of the evidence, so as to enable this Court to ascertain whether he lias drawn a right or wrong conclusion from it, either in fact, or in law 5 for fee cannot draw' the conclusion of law, without first ascertaining how the facts arc. Many other points were made in the argument, bat it is unnecessary to examine them. The judgment of the Court below, must therefore be affirmed.

"Taylor, Chief-Justice., concurred.