Gearing v. Lacher

Opinion, Mb. Justice Mitchell : The main controversy before the jury was whether the five hundred dollars which Lacher gave appellant, was compensation for going security for plaintiff and Lacher, or only a deposit to secure appellant from loss in so doing. But even in the latter view, on which plaintiffs’ case rests, appellant was entitled to credit for the expense he was put to in bringing Lacher back, after he had run away and the recognizance was forfeited. The learned judge correctly so charged the jury, but then he is reported as saying, “ As to the matter of the recognizance I have nothing to say to you, because there is not enough evidence before the court. It does not appear clearly what was done ; that is a question to be decided hereafter.” This was so plainly er [400] roneous, and so contradictory to what the judge had told the jury just before, that we are constrained to believe that there is some omission in the report which alters the whole meaning and application of the passage. The forfeiture of the recognizance and the expense that appellant had been put to, on that account, were essential features of the case, if the jury took the plaintiffs’ view, that the money paid was for security only; and so the judge had instructed the jury. There were separate recognizances for Minnie Gearing and Lacher, and Lacher testified that appellant did not enter bail to court for Minnie Gearing, and that her recognizance was not forfeited, though it was produced with the forfeiture indorsed upon it and testified to by the court clerk. It is probable that the learned judge was referring to the conflict of evidence in regard to the two recognizances, and that some error or omission in the report has confused the sense of his language, but as we find it on the record it was patent error, and the assignment in regard to it must be sustained. Judgment reversed, and venire de novo awarded.