Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-02-24


was no evidence show what those IL carloads
consisted Of And again, as the plaintiffs did quick
business on cash, or short credits, buying only as
they wanted goods, you to say whether under the
evidence, they were likely to have had large stock
on hand at the Time OF the lre
To be sure an offer was made to produce the books;
but because the plaintiffs had no legal testimony, and
offered illegal testimony and that was refused by
the defence you not therefore to infer any thing
unfavorabe to the defendants. That's not the rule of
law. Because the defendants charge the plaintiffs
with fraud snd perjury in making up Their account OF
loss, and therefore they naturally afraid of any
thing coming from that quarter, alleging, as the rea
son. that it may be part and parcel OF the same sys
TEN of fraud they trying here 10 defend them
selves against. should not raise this que stlon here
had not the counsel pressed il so strongly IN his sum-
ming up.
To be sure, there is evidence that they had at enc
time larger Of goods in their store than that
claimed by them; bHt there is no evidence 10 show
an actual loss of $780, the amount claimed there
fore the former fact is criterion by which we can
dge that they did lose that amount
He then adverted to the testimony of Mr.. Baylls
and Mr.. Kellum as to the insignfcance of the fire,
and added that they appeared to be the best able to
tell all about it.
He also observed that the Jury were left in great
uncertainty to there being two distinct fires in diff
erent parts Of the store and as to the origin OF both
or either
A slight inference might be adduced that il was by
design; but then it was hardly far to suppose it was
done by design, because any person intending TO
burn the store would not set hire to the ceiling. On
the whole he considered there was not sufficient
timony to warrant the jury to mpute the burning to
design.
He added that from the testimony, it appeared
quite incredible that SO large quantity OF oil and
spirits could have been lost the amount here claim
Cd Ii was on the face Oft incredible that four or five
pipes of spirits could there and then have been de-
stroyed by fire; for they would have blown up the
building
these were not destroyed by fire, the question then
was, were they destroyed in any other way; there
was no evidence that property was destroyed by vo
ence the duration of the fire was short; again, the
smell, alone, of the oil and spirits would have given
evidence of their destruction, had it taken place.
The plaintiffs witnesses speak OF no destruction
| of no slaves or hoops remaining but of those two
casks Ii there had been much destruction there
! would have been some evidences of the wreck but
the evidence of the wreck on all Sides was that II
| was light and trihlng.
In all human probability the fire came from above
and never reached the floor the carpenter who made
the repairs said he did nothing the floor and thus
far there was testimony of any greater loss than
that actually proved, of about 5000 Oae witness
spoke Of some slaves piled Hp-another of some
slaves scattered about; another of barrel OF burnt
coffee; but whether that was large or SMALL burn,
before the fire or by there was no evidence.
Mr. Aldridge said he saw flame that lighted the
whele building but that was fatty contradlcted; SO
was his Hent about the books, and the counting
room window. Ii had been said IN argument that
there must have been flame because of the evidence
on the burnt boards but that did not necessarily fol-
low; because fire will run wherever there is wood,
and that often without much flame.
1t has been proved, however that there was some
fire and some damage and IT is for you 10 say how
much. Juries should be crcumspect in regard 10
duplicating parties offraud, without being well salts
fed, in their minds, that there was sufficient to
! prove the fraud had been committed, and then
they should solely from their sense of justice, in
order to punish the perpetrators Of crime, and in
der TO deter others from similar conduct.
Juries are always 10 act from honest conviction
and not TO be led away by ther feelings Of sympathy
for the parties. They were not 10 hesitate in pro
nouncing persons guilty of offences because such
verdict would be runous TO the cnpn II satisfied o
partys guilt, they must pronounce the party guilty
! You nave heard the policy read, which stpsla,e,
that If in rendering account of their loss the parties
insured make false return and commit perjury, the,
must suffer the loss Of all they did actually Sustain
not for setting fire TO the premises but fer trying
avail themselves of the occurrence Of that fire, il
company. And il you find that the plaintiffs over
stated their loss you may find verdict generally fo
the defendants, and indemnify them from paying IN,
assured any thing.
But, gentlemen, there is a middle course which you
may pursue; from the nature OF the plaintiffs bust
ness-for cash principally-sales may have taker
| place and no entries made Of them and they MAY
believe honestly that they did sustain the loss the,
claim and believe that they have made cut an hen
est account of the same.
Again, gentlemen, the Waterman has not been pro
duced. He may have been of his guard-may hav,
left his post; in the interim, marauders may have
come there and the alleged loss may have been sus
tanned. All this is within the range Of possibility
though il is not very probable If therefore you be-
eve that the loss sustained by the Joint action OF fir,
and water was less than they say, and yet believe
that they did not make out their account with frau
dulent design, you will find for the loss which they
actually sustained.
The evidence goes to show that there was consi-
derable amount Of goods in the store at the time
of the fire, TO amount TO fully much more than
the loss charged. But il is difficult TO say from tho
evidence that so large loss sustained as they
| claim had II been So Bayls and Keum would
have something Of the large destruction Of pro-
perry.
No perssn, IT appears, made particular examina-
ton of the actual loss the notary went there IL ia
true and he saw enough to satisfy him that there
had been a fire 70 extent there, and took il for
granted il had destroyed as much as they alleged.
You will therefore, gentlemen review all the facts
| carefully and If you find that the plaintiffs have
sustained loss as large they alleec, give them
| verdict 10 that effect.
And il you find that they did not lose somuch only
about see or $780, and yet did not make their return
with fraudulent design, you will give them a verdict
/ for the amount yeu think that they lost.
| But IL YOU find that they only lost about $500 in
stead OF el2o0, and that they rendered fraudulent
| return, you will give verdict for the defendant
4 These three points submit 10 your Judgment Won