Wilmington daily commercial., 1875-04-10
The u. =. Court.

ARGUMENT FOR THE MOTION FOR NEW TRIAL IN
THE DAY CASE.
The motion for new trial in the case of the
United States Us. Chas II. b. Day et al. is now
being heard before Judge Bradford in the U. s.
Court.
This case was a suit against the sureties Of
Day on his bond, and has been a subject of con-
troversy for some years. In Oct, 1873, it was
tried before Judge Bradford and resulted in the
United States taking non suit On February
9th of this year, it again came up for trial, and
after 81 days Of actual trial verdict was rem
dered in favor OF the defendants Mr. Higgins,
| counsel for the government, Immediately mo-
toned for new trial, and to-day was set aside
for the hearing of the argument.
Mr.. Higgins, counsel, for the Government,
commenced his argument at 10 O'Clock. he
said that he felt that his application for new
trial was Just and right, and that he would have
been derelict in dnty had he failed to make
such motion after verdict, as he was satis-
fed, had been rendered in direct conflict with
the evidence in the cause, and against the
charge Of the court.
The reasons for his motion were six
LIST. That the verdict was against the evi-
dence.
2nd. That the verdict was against the weight
of the evidence.
Bird. That the verdict was against the law and
against the charge OF the court.
18th. That the Court erred in charging the ju-
ry that the defendants We're entitled to credit
for Day claim for advertising before June Both,
1865, and for depositing money. neither claim be-
ing at the time authorized by law.
9th. That the Court erred in failing to charge
the Jury that Day could not be permitted to CLAIM
credit for the items included in the statement of
differences set forth in Report No. 1876, of the
transcripts and admitted by Day as erroneous in
his quarterly account, ending June 80, 1865 be-
cause after having once admitted, accepted and
adopted their rejection by the accounting officers
Of the Treasury, he must prove new presenta-
| ton and rejection of them before they were
| admitted in evidence.
q. That the Court erred in admitting evi.
dence for the purdose OF proving mistakes in the
| transcript of tile account of the plaintiff, tho
several papers offered in evidence by the defeu.
| dants as coming from the Commissioner OF in
| ternal lievenue and George p. Fisher, and be-
| tween Fisher and the Defendant Day, and
the account in pencil writing alleged to have
accompanied the same and aso two other pa
| per writings purporting to be summary state
ments of the accounts OF Day Collector of In
| ternal l,evenne
Upon the first three reasons mainly rests the
application for new trial Mr.. II. then reaC
| from Blackstone's Commentaries, showing gen
| eral reasons upon which a motion for a new tria
| should be based and read from 2. Todd princi
| pies upon which verdict should be set aside.
This was an issue of payment Mr. Day at
tempted to show that he had paid monies tc
| the United States The claim was made up o
| the collections on the Internal Revenue and dis
| bursement accounts. In the trial and argument
| the debts and credits were all set forth but ht
preferred to take the balances as found in tile
various accounts in evidence and t
subject them to the evidence in rebut
| tai and reply. The claims stand, ant
wherever credits arc not shown there the bal
ance stands, if no evidence disproves it. Thit
verdict stands against the evidence and weigh
| of the evidence.
Mr.. Higgins then went into an examination Of
! flta Tuy unIT T,ta-
| and was still speaking upon it at the noon re
cess lie will probably occupy the whole of thi,
| afternoon, and will be followed by Hon N b.
Smithers i'll all argument on behalf of the defen
| dants.
THE M'LEAR BANKRUPTCY CASE.
| Geo. II. Bates, Esq, included his argument
| yesterday, in the case of VIM. Candy, Assignee
as. Amelia Il. McI.ear, and the questions at is
| sne were submitted to the Court who held then
| Sub cui3d.