Delaware tribune. [volume] (Wilmington, Del.) 1867-1877, 1875-04-15
THE U. S. COURT.
The Day suit.
ARGUMENT FOR THE MOTION FOR NEW TRIAL

ARGUMENT FOR THE MOTION FOR A NEW TRIAL IN
THE DAY CAsE.
Tho motion for now trial in tho case of the
United States ps. Chas il. b. Day 81 di has
benn heard before Judge Bradford in the U. s.
Court.
This case was snit against tho sureics OF
Day on hia bond, and has been subject of con-
troversy for some years. lii Oct, 1873 it was
tried before Judge Bradford and resulted in the
United States taking n non suit. On February
9th, of this year, it again came up for trial, md
after 81 days OF actual trial a verdict was rem
dered in favor of tho defendants. Mr.. Higgins,
counsel for tho government, Immediately mo-
toned for new trial, and to day was set aside
for tho hearing of the argument.
Mr.. Higgins, counsel, for tho Government,
commenced his argument at 10 o'clock. He
said that ho felt that his application for new
trial was inst and right, and that he would have
been derect in duty had he failed to make
such motion after verdict, ns he was satls-
fed had been rendered IN direct conflict with
the evidence in the CAUSE, and against the
charge OF tho ccnrt.
The reasons for his motion wero six
lst That tho verdict was against tho owl
dBnce VIZ
2ud That tho verdict was against the weight
of the evidence.
3rd. 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 tho defendants were entitled to credit
for Days claim for advertising before June 30th,
1865, aud for depositing money neither claim be-
ing ut tho time authorized by law.
9TH. That the Court erred in failing to charge
the Jury that Day could not be permitted to clam
credit for the items included in tho statement of
differences set forth in Report No. 1876, of the
transcripts, and admitted by Day as erroneous in
his quarterly account, ending June so, 1865 be
cause after having once admitted, accepted and
adopted their rejection by the accounting officers
OF the Treasury, he must prove new presenta-
tion and rejection of them before they were
admitted in evidence. ..
6. That the Court erred in admitting owl
dence for the purdose of proving mistakes in the
transcript of tho account of tho plaintiff, the
several papers offered in evidence by tho defen-
dants AZ coming from the Commissioner Of in
ternal Revenue and George p. Fisher, and be-
tween Fisher and tho Defendant Day, and
tile 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 as Collector of In-
ternal Revenue.
Upon the first three reasons mainly rests the
application for new trial. Mr.. IL. then read
from Blackslones Commentaries, showing gen.
cral reasons upon which motion for new trial
should be based and read from O. Todd princi.
pies upon Which verdict should ba set aside
This was an issue of payment. Mr., Day at-
tempted to show that he had paid monies to
the United States. The claim was made up of
tho collections on the internal Revenue and dis
bursement accounts. In tic trial and argument
the debts and credits were all set forth but he
preferred to take the balances an found in the
various accounts in evidence and to
subject them to the evidence in rebut-
tai and reply. The claims stand. and
wherever credits are not shown there the bal
ance stands if no evidence disproves it. This
verdict stands against the evidence and weight
OF tho evidence.
Mr.. Higgins then went into n examination of
the Direct Tax and Internal Revenue account,
and was still speaking upon it at the noon re-
cess He Will probably occupy the whole of this
afternoon and will be followed by Hon. N. b.
Smithers in an argument on behalf of the defen-
dants. For the period from June 80, GA, to June
80, Co. MIR. Day charges himself with taxes to the
amount of 1868, ,O43.22. For the same period the
United States charges him with precisely the
same sum. But in making up the aggregate the
United States accountants classify under the
| head of 'sunassessed penalties" .71, ,228.23 and
Mr.. Day classities under the same head only
S22, 3G5. As and the defendants claim that the
| difference S48, ,9S2.7S was erroneously charged
against Mr.. Day and that he has actusllv osSF-
i I,ani tiie government that amount
But this claim is destroyed by tho fact that
Days account and those Of the Government
agree as TO total charges during the entire year.
Tho rema ming taxes put in Days hands were
OH Assessors lists. Mr.. Day charges himself
with only s22, 5.45 AZ ''unassessed penalties,
but he also charged himself with "Assessors
Lists" in excess of the amount charged under
that head by the sum of .4tS, ,s62.7S The dis
pute, therefore, is not to be the amount
charged against Mr.. Day fol the year, Iut Of
what items the taxes were made up.
Mr.. Higgins held that oven IT mistake were
made (Which he denies) by the Government az
to the classifying the lists as above claimed that
constitutes no defence when Day himself ad-
mits that the gross charge il correct
| of which the item of ''unassessed penaltes'
forms only Il part. He closed by saying that in
view of all these facts he thought it eminently
proper to ask his motion and submitted his re-
Marks
AtI 30 Court adjourned until lC O'Clock Sat-
urlay morning, ~ion Hon. N. b. Smthors com
menced his argument in behalf OF the defen-
| danfs lie said that upon Six reasons the coiui-
sci for the Govt. based his argument, on all Of
which lie relied to greater or less degree. He
would not attempt to go into tho charges first
and second in relation TO tho verdict being
against the evidence and weight of evidence,
leaving that to Mr., Harrington, who was fa-
miliar with tho facts and who would follow him
in an argument ; not having tried the case, it
WAS not his intention to discuss tho facts, but
that he would offer some principles OF law aud
direct his remarks mainly to the bsoad question,
| Should the verdict be set asidet
| lie said that not only the verdict but tile
charge of the Court is assailed. Reading an alb
stract from the Judges charge, he believed the
| u. y. had nothing to complain Of. Tho Court
wisely handed the facts to the jury, placing the
burden where it belonged. Tho inry against
| whom there is no impeachment, rat patiently
listening to counsel for u days of actual trial,
being enlightened as much as 1t was possible FOL
any Jury to be enlightened and to the best OF
their ability have produced certain verdict.
But my learned friend comes here and invokes
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.
It is to tho advantage of the Government
that this suit should stop. The muniments OF
title arc before tho court and Will DO oHered tc
the next Jury tho same facts too will be submit
ted by tile same counsel. 1t is not wonder
full that the learned attorney is dissatisfied will
the verdict and asks for new trial. As IL said ne
law suitcau be decided that Will not dissatistS
one party to the action, but as Justice Parker
says law suits must be decided and the canst
has been we'll tried by competent counsel. Inc
accounts were of the most complicated character
a verdict has been rendered; is it safe then tt
List,,rb it, even were the verdict contrary to my
expectation? Pardon me II were it contrary to
your honor's opinion What guarantee have we
that the next twelve men will have any bette
guide than the former?
Mr. SmitherB 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 il
arriving at their conclusion, without palpabl
mistake WAS evident that it was not policy Il
disturb such q verdict, having no assurance tina
another jury would arrive at more satislactor!
J determination.
We do not deny that the Court has right t.
grant the motion for new trial. This IL re
peatedly done but we ask ii it wise to set asid
verdict where the accounts are OF complicat
ed nature, where the facts are given to tue jury
: who. under oath, are the final judges of til
weight OF evidence and of Its credibility, All
who render II verdict as their honest conviction
Ais minutes Of l. Mr.. Smithers conclude
and the Court adjourned until Monday morni:,
at 10 o'clock, when Mr.. Harrington began speai
i ing for the defendants.
The Concord Centennial.
! Arrangements have been nearly complete
= ;, for the reception OF President Grant, on h
= visit to Massachusetts, to attend the lie,
= = ington and Concord Centennial. The Pres