| Pa. | Oct 23, 1872
The opinion of the court was delivered, by
This action was brought to recover one hundred and fifty dollars, the residue of a larger sum deposited in the bank by W. W. Hamersly, to the credit of the plaintiffs’ trustees, of whom he was one, and to whom the bank paid the money after notice from the plaintiffs not to pay, or to any one unless by an order from the Post, signed by the Post commander and attested by the adjutant, in favor of the quartermaster of the Post. The whole controversy on the trial was in relation to the ownership of the fund — whether it belonged to the plaintiffs or to Hamersly — ■ and the court submitted the question to the jury, with the instruction that if it belonged to the plaintiffs they were entitled to recover ; but if it did not, the verdict should be for the defendant. This instruction was clearly right, and the plaintiffs do not complain of it. But they allege, and, as we think, not without good reason, that the court erred in charging the jury: “It is for you to find from all the testimony in the cause, whether the plaintiffs have satisfied you by proof stronger than that of the defendant, that the fund deposited belonged to them. If they have so satisfied you, your verdict will be for the plaintiffs. If they have not so satisfied you, your verdict will be for the defendant generally.”
Primá facie, the money belonged to the plaintiffs, as it was deposited to the credit of the trustees. The burden of proof was, therefore, on the defendant of showing that it did not belong to them, but that it belonged to Hamersly, to whom it had been paid, and the court should have instructed the jury that the burden of proof was on the defendant, and if the evidence failed to satisfy
We also think there was error in ruling out the question put by the plaintiffs to Hamersly on his cross-examination. The plaintiffs clearly had the right to put any question to him touching the ownership of the fund. As an answer to the question might have shed some light on the subject-matter in controversy, the question was clearly pertinent, and it was error to exclude it.
The other assignments of error ar£ not sustained, and there is nothing in any of them requiring special notice.
Judgment reversed, and a venire facias de novo awarded.-