While tbe law may have been properly stated in tbe charge of tbe Court, it was done in such a way as to mislead tbe jury.
Tbe case turned upon tbe question as to whether tbe local Lodge has bee served with notice of suspension by tbe Grand Lodge. And this seems to be tbe view taken by bis Honor who triedtbecase. Tberewasno evidence tbat such notice bad been actually received by tbe local Lodge, and tbe defendant relied on constructive notice. Tbe defendant contended tbat it properly mailed a notice of suspension, and tbat this was constructive service upon tbe subordinate Lodge, and that *156plaintiff bad offered xlo evidence to rebut tbis presumption. This seems to have been the way the Court understood the law. Rut the evidence as to mailing the notice was not such as authorized the Court to charge the jury, that if they believed the evidence the notice had been mailed, as the law required it should be, to create the presumption of service. And we think this question was properly left with the jury to find whether it was mailed or not. It seems to us that the Court, in one part of the charge, sufficiently instructed the jury that, if the notice was properly addressed and put in the post-office, with postage paid, then the law would presume a service.
But in a long charge, answering a great many prayers for instructions, he repeatedly said, “Was this notice served on Cherry? (the secretary). Did he receive it? This is the question.” In this way, it seems to us, the jury were most likely left with the impression that it was necessary for the defendant to show that Cherry actually received the notice. Eor this, reason there ought to be a new trial.
New trial.