The President and Directors of the Bank of the Metropolis, Plaintiffs in error, v. The President, Directors, and Company of the New England Bank, 6 How. 212

Mr. Chief Justice TANEY delivered the opinion of the court. This case was before the court at January term, 1-843, and is reported in 1 Howard, 234. The judgment of the Circuit Court was then reversed,, and the case remanded, with directions to award'a venire facias de novo.

Upon the second trial some additional testimony appears to have been offered, and two instructions given by the court to the jury, one upon the prayer of the defendant, the other upon the prayer of the plaintiff, to the last of which the defendant, who is now the plaintiff in error, excepted ,• and the judgment of the Circuit Court being against him, he has again brought the case here by writ of error.

The opinion expressed by this court in reversing .the former judgment and remanding the case is summed up in the following paragraph in .1 Howard, 240. “ If, therefore,” say the court, “the jury find that the course of dealing between the Commonwe .1th Bank and the Bank of the Metropolis was such as is stated in the testimony; that they always appeared to be-and treated each other as the true owners of the paper mutually remitted, and had no notice to the contrary; and that balances were from time to time suffered to remain in the hands of each other, to be met by the proceeds of negotiable paper deposited or expected to be transmitted in the usual course of dealing between them, then the plaintiff in error is entitled to retain for the amount due on the settlement of the account.” The only question now open upon this second writ of error is; whether the Circuit Court, in their instructions to the jury, have conformed to this opinion.

We have examined them with a good deal of care, and regret to find them so complicated and involved, that we have some difficulty in ascertaining the meaning of the Circuit Court. It would seem to be almost impossible for a jhry acting under such instructions to comprehend distinctly the issues of fact upon which they were to find their verdict. Indeed, as we understand these two instructions, the last paragraph in the second seems to this court to be inconsistent with the direction contained in the first.

And if the last . instruction stood by itself, without any reference to the first, it might perhaps be construed to be substantially the same with the directions given by the Circuit Court at the former trial, which were reversed upon the. former writ of error.

It is not usual in remanding a case to state in the opinion of this court the particular manner in which the instructions to the jury should have been framed, but to state in the opinion the principles .of law which govern the case as it appears in the record, and leave 'it to the Circuit Court to apply them to the case, as it may appear in evidence upon the second trial, in such manner and form as it may think advisable.

From, the manner, however, in which the directions of the Circuit Court appear in the record before us, upon the trial under the mandate,- we may perhaps prevent future difficulty by stating the form in which instructions to the jury might have been given so as to carry into effect the opinion of this court, and enable the jury to understand more clearly the points in issue before ■ them. Of course'we. do not mean to prescribe this form to the Circuit Court when the case again comes before it, because the testimony, then offered may.differ materially from that now contained in the record.

But if, instead of the complex instructions under which the case was decided at the last trial, the following directions had been given, it would have conformed to the opinion of this court when the case was formerly before it, and at the same time have enabled the jury, to understand more distinctly the matters of fact in dispute between the parties, and submitted to them for decision 1.

If, upon the whole evidence before them, the jury should find that the Bank of the Metropolis, at the time of- the mutual dealings between them, had notice that the Commonwealth Bank had no interest in the bills and notes in question, and that it transmitted them for collection merely as agent, then the Bank of the Metropolis was not entitled to retain against the' New England Bank for the general balance of the account with the Commonwealth Bank. 2.

And if the Bank of the Metropolis had not notice that the Commonwealth Bank was merely an agent, but regarded and treated it as the owner of the paper transmitted, yet the Bank of the Metropolis is not entitled to retain against the real owners, unless credit was given to the Commonwealth-Bank, or balances suffered to remain in its hands to be met by the negotiable paper transmitted or expected to be' transmitted in the usual course of the dealings between the two banks. 3.

But if the jury found that, ■ in the dealings mentioned in the testimony, the Bank of the Metropolis regarded and treated the Commonwealth Bank as the owner of the negotiable paper which it transmitted for collection,, and had no notice to the contrary, and upon the credit of such remittances made or anticipated in the usual course of dealing between them bal-, anees were from time to time suffered to remain in the hands , of the Commonwealth Bank, to be met by the proceeds of such negotiable paper, then the plaintiff in error is entitled to retain against the defendant in error for the balance , of account due from the Commonwealth Bank.

We restate the former opinion of this court in this form, because we presume it must have béen misunderstood by the Circuit Court. And as it was not followed in the proceedings under the mandate, the judgment must be reversed, and the cause remanded, with directions to award a venire facias de novo. Order.. This cause came on to be. heard on the transcript of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the county óf Washington, and was argued by counsel.

Oh consideration whereof, it is now here ordered and adjudged by this court', that the judgment of the said Circuit Court in this cause be and the same is hereby; reversed; with costs, and that .this cause be and the same is hereby remanded to the said Circuit Court, with directions to award a venire facias de novo.