Wilmington daily commercial., 1875-04-12
FIRST EDITION.
The Day Suit.
FURTHER ARGUMENT ON THE MOTION FOR NEW


| FURTHER ARGUMENT ON THE MOTION FOR A NEW
TRIAL.
On Friday afternoon, u. $. District Attorney
Higgins concluded his opening argument on his
motion for new trial in the case of the United
States os. Chas. IL. b Day He spoke chiefly
as to tho item of ''unassessed penalties," MAX
ing numerous calculations summary of which
| is as follows:
| For the period from June 30 1864, to June 80,
| 1865, Mr.. Day charges himself with taxes to the
amount of S7630i3 %. For the same period the
| United States charges him with precisely the
same sum. But i'll making up the aggregate the
| United States accountants classify under the
head of ''nnassessed penalties" S7l, ,22S 23 and
| Mr.. Day classliies under the same head only
S22, 3G5.45 ard the defendants claim that the
| difference lS,9S2. 7s was erroneously charged
| against Mr.. Day, and that he has actually over
| paid the Government that amount.
But this claim is destroyed by the fact that
| Days account and those of the Government
agree as TO total charges during tho entire year.
| The rema ming taxes put in Days hands were
| OH Assessors lists. Mr. Day charges himself
with only T22, 365.45 as ''unassessed penalties,
| but he also charged himself with 'Assessors
| I.ists' in excess OF the amount charged under
| that head by the sum of .s4s, ,s62.7S. The dis
pnte, therefore, is not to be the amount
charged against Mr. Day for the year, but OF
what items the taxes were made up.
Mr.. Higgins held that even II II mistake were
Il
to the classifying the lists above claimed that
constitutes no defence when Day himself ad-
mits that the gross charge III correct,
of which the item of "unassessed penalties
forms only part. lie closed by saying that in
view OF all these facts he thought it eminently
proper to ask his motion and submitted his re-
marks
At A. 30 Court adjourned until 1C O'Clock Sat
urday morning, when Hon. N. b. Smithers com
menced his argument in behalf of the defen-
Ia,,f Ia fI,nt ionn lly
sci for the Govt. based his argument, on all Of
which he relied to Il greater or less degree. He
would not attempt to go into the charges hrst
and second in relation to the verdict being
against the evidence and weight of evidence,
leaving that to Mr.. Harrington who was fa-
mlliar with the facts and who would follow him
in an argument not having tried the case, it
not his intention to discuss the facts, but
that he would offer some principles OF law and
direct his remarks mainly to the broad question,
Should the verdict be set aside?
lie said that not only the verdict but the
charge of the Court is assailed. Heading all alb
stract from the Judges charge, he believed the
U. S. had nothing to complain of. The Court
wisely handed the facts to the jury, placing the
burden where it belonged Tho jury against
whom there is no impeachment, sat patiently
listening to counsel for q days OF actual trial,
being enlightened AZ mnch as it was possible for
any jury to be enlightened and to the best of
their ability have produced certain verdict.
But my learned friend comos here and 1nyokes
this Court to take away that question from the
consideration of that Jury and to give it to an-
other with prospects of them becoming no more
enlightened.
1t is to tho advantage of the Government
that this suit should stop. The muniments of
title are before the court and will be offered to
the next jury, tho same facts too will be submit
ted by the same counsel. 1t is not wonder
full that the learned attorney is dissatisfied with
the verdict and asks fora new trial. AS il said no
law suit can be decided that will not dlssatisfy
one party to the action but as Justice Parker
says law suits must be decided and tho cause
has been well tried by competent COUNSEL. The
accounts were of the most complicated character;
verdict has been rendered; is it safe then to
disturb it, even were the verdict contrary to my
expectation? Pardon me il wore it contrary to
your honor's opinion. What guarantee have we
that the next twelve men will have any better
guide than the former2
Mr. Sinithers then cited numerous authorities
where it was held that where accounts were
complicated and no prejudice, trickery, or pas
sion had been brought to bear on the jury i'll
arriving at their concluson without palpabe
mistake evident that it was not policy to
disturb such a verdict having no assurance that
another Jury would arrive at more satisfactory
determination.
We do not deny that the Court has right to
grant the motion for new trial. This Ii re-
peatedly done, but we ask is it wise to set aside
verdict where the accounts are OF a complicat-
ed nature, where the facts given to the jury,
who. under oath, are the final judges OF the
weight of evidence and of It's credibllity, and
who render verdict as their honest conviction ?
At 10 minutes of /, Mr. Smlthers concluded
and the Court adjourned until Monday morning
at 10 o'clock. when Mr.. Harrington began speak
ing for the defendants