Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1871-04-29

Geo H Rice enters ch IN Sue ~DOnEhertY, 8
Also, ch Ida Grissom, years old. silver
grey with white stripe.
Leroy Paul enters 8 N Ella jackson, 4 years
old, Red and red.
1t will be seen that there are TO be fine
races for to-day, which will be the best
day OF the meeting. The fRvOrite horses
are Corsicsn and Ssllie Farrell Races
commence st half past two.
HOT WATER.
H8W Railroad Contractors 10 the SWamps
Set IHtO lt-Hhat It G0sts to Get
But-A Struggle for the
Rhino.
The bigraiIroad case that has been under
going investigation before Esquires Miller
and Gibson for some days, was brought
to a focus yesterday. Judge Brown was
triumphant. II is a case Of much pecu-
liarity, and involves tbs swaps of Ar
kansas to the White river, not In water,
but IN legal quarters for many months to
come. The matter was fully explained in
a recent issue of the APPEAL. The fol-
lowing is the opinion of the Judges, or
rather Sguires:
State Of Tennessee Elk Rel. State of Ar
kansas vs.. ChRs Il. observation-disclosures r.
B. Miller, J. P, Shelby county, Tonnes
see, W. B. Gibson, Associate J, P. etc:
This is a case in which the defendant,
Chas. II. Rowland, is charged in a war
rant, sworn out by George ". Smith, with
the crime of enlightenment.
The warrant is sworn out und6F the
tradition orinternRtional comfy laws of
the State of Tennessee, and is based on
section 5345 OF the Code Of Tennessee.
The offsnse is alleged TO have been
committed in the State of Arkansas, and
to hold the defendant subject to q requlsi-
ton from the Governor Of the State Of
Arkansas is the object Of this proceeding.
1t appears in evidence that Chas. Fl.
Rowland, together with J. z. Dillon and
Sam. Tate, made q contract with the Mem
phis and st. Louis Railroad Company for
the building Of the Memphis and st,
Louis railroad, from the Missouri State
line to Helena, Ark, under certain
stipulatiOns. That subsequent to this, to
wit: on the oath day Of March, 1870, they
entered into a contract with George W.
smith and Jacob Erriger, partners
under the firm name of Smith &
Erriger, TO carry out the terms Of his
contract with the Memphis and 81. Louis
Railroad Company.
II appears by this contract with Smith
and Erriger hat there are other parties
Interested in the profits to accrue from the
contract, but that Smith and Erriger were
to succeed to all the rights and obligations
of HOWiaDd and associates, so far as the
Memphis and st. Louis Railroad Com
pany were concerned, but that as between
themselves, they assumed new Obliga-
tiOns, TO some extent, tOWard each other.
BY the terms Of this new contract all
parties agreed that the terms of the Origi-
nal contract of Rowland and associates
should be and remain in force, but only
transferred in its application to Smith &
Erriger, Rowland and associates reserv-
ing certain profits 70 themselves and
others as a part Of the consideration of the
transfer. 70 this the Railroad Company
assentsd.
Sections 3 and 4 of the original contract
sets forth that the Railroad Company
agree to pay Rowland and associates
monthly for work or material furnished
or money expended by them on the road,
when duly certified to by the chief engi-
nesr or the engineer in charge.
Section g Of the contract Of How
lBnd and associates with Smith
q Errlger, sJipuiates that the
h" estimates for the work done and ma
terials furnished shall be paid into the
hands of said George W. Smith, to be by
him accounted for according 10 the 0rigi-
nal contract" but 10 is further stipulated
that If payment is made in securities,
(which it seems the road were authorized,
or expected to be authorized, TO obtain,
either by themselves or by their con
tractors, but certainly for the benefit of
the rOsdl that the said securities were 70
be deposited in the Union Trust Com
psny of the State Of New York, and there
to remain, subject to order Of sale by
George W. Smith, when Smith 81 Erriger
had expended S25, 900 in the construction
of the road.
It is contended by counsel for the
prosecution that Smith was the only per-
son authorized by the terms OF the con-
tract to draw these State securities, and
that when drawn it became bis duty to de-
post them in the Union Trust Company, |
to be sold or DIVIDED, as ordered by him
self, or agreed upon by all the parties in
interest.
This proposition defendants counsel
deny, and say that Rowland onty was
authorized 10 draw or rscsive said seCuri-
ties, and in support Of this view relies on
the original contract, snd also upon a con-
tract entered into by defendant and BEN
jsmin Thomas, COMMISSIONS of Internal
Revenue Of the State of Arkansas, which 1
contract is also introduced in evidence.
There are several views in which the
case has been presented by both parties.
The prosecution claiming that if How
land was authorized 10 receive said seCu-
VIC GH ale AAeN A0 NH4A IA W AAAAaAN O
them in the Union Trust Company, and
that to retain them on his own person, or
to ransfe them TO another, Was at least
conversion, and that if done with a fraud
ulent intent JhaJ 10 was embezzlement.
70 was also cOut6ndBd that if he converted
the securities, or failed to deposit them,
Composing hs had any authority to han
die them whatever that tnat was a fraud
ulsnt conversion under the Arkansas
statute, and that the defendant should be
held TO answer The charge, though arrest
ed on a warrant for smbgz Element. As to
the authority Of the Court to hold over on
q charge different from that stated in the
warrant, in this case the Court does not
think it material TO inquire, especially in
mittsd, it is more nearly defined by en-
bezZlsmanG than any other.
The defendant also set up in his defense
hat the failure OF the prosecutor to COM
ply with his contract had estOpped him
from denying the rights Of defendant to
draw said securities, inasmuch As under
the original contract he defendant was
the party TO be paid, and says that prose-
cutor has not expended twenty five
thousand dollars in cash in the construe-
ton Of the road, as defendant insists That
he should doibefore he, the prosecutor, has
any right to secure money or securities.
But this seems 70 be iLl-founded, as the
prosecutor shows by MS evidence, as also
defendants witnesses of an expenditure
Of more than the SIS, 900 required. Com
plainaut claims that he had a right to
draw his securities or other pay
monthly, and that he was only required
10 withhold an order OF sale until he had
expended that amount. This we think
to be clearly the meaning Of the contract.
We have deemed IL necessary to take
this extended view Of the civil aspect of
the case in order to ascertain tho rights of
the parties, that we might the better be
to arrive at a just conclusion OF the
Intentions of The defendant.
AS to the guilty Intentions of defend
ant we draw our conclusions from the
conduct Of the defendant as detailed BY
wit8esses-and as ignorance Of
the law is no excuse for crime, We must
conclude that the defendant Was OOgni-
zant Ofthe legal consequences Of all bis
acts, especially in view of the fact that he
had a written and well Worded contract
before him; and az our duties only re-
1uire US to inquire "whethsr or not their
Is probable Cause" we feel constrained
10 hold the defendant in a bond sufficient
10 secure his appearance at this court on
The 9Th day Of May, 1871, to await the re-
QUESTION Of the Governor of the State Of
Arkansas. The bond viii Go fixed at
.5birty-three thoasand'doltars.
ROBERT 3. MILLER, j. P.
W. B. Gibson, j.. p. {
April Is, 1871.
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