The daily gazette., 1875-06-05

ShAhoE TO THE JURf-OTHER BUSHES.
Especially reported for the Gazette.l
New CASTLE. June 4, 1878.
Court opened this morning ut 10 o'clk
Judges qllpin. Wootten and Houston on
The Court took up the case of Kent
County IL. IL. Co. VS.. William Wilson
Nearly the whole morning was occupied
by Mr.. q. b. Rodney summing up for
the defence anu Mr.. Gray's cio,ing ar.
gument fJr the plaintiff.
Chief Justice Gilpin then delivered
the charge OF the Court as follows,
Gentlemen OF the Jury,-It must be a
matter OF congratulation on your part.
as it is on the part Of the Court, that we
are rapidly approaching the conclusion
OF this case This case is one important
IN its questions Of law and may possibly
be one Of some hardship to the defend.
ant. With this latter consideration the
Court and jury can have nothing to do.
as they must be guided by the facts
placed in evidence and the law of the
land No sympathies can be permitted
to operate upon Court or jury. Justice
according to law Ia that to which the
plaintiff Ia always entitled. This. gen.
tlemen. IS an action OF assumpsit to re.
cover the amount OF subscriptions for
100 shares Of stock of the Kent County
Railroad Company, at S25 90 per share.
making $500, payable upon instalments
as called for upon not less than 80 DAYS
published notice. as prescribed by the
charter. The subscription bears date
the 18th OF December, 1865, but was not
actually made until July, 1866 There
were several calls made for payment of
instalments. The first call Of SI25 90
was paid on the 18th of May. 1857. and
IN regard to that instalment, no claim ia
made by the plaintiff upon this defend.
ant, he having been credited with that
payment. The second call was made
payable on the 18th OF August. 1857.
the third on the I'd Of May, 1868: the
fourth on the lst of September. 1868.
and the fifth and last on the lst Of Sep.
tember, 1869. These dates ara import.
ant under the pleadings in this case.
Tho suit was instituted May 10, 1873,
The pleas filed In defense are 1st. non
assumpslt;. End, fraud and GOWN; 81
net OF Limitations. The first plea de.
mes the existence OF a pahd contract
and thus the defendant devolves upon
the plaintiff the necessity Of showing
that he, the defendant ed into and
made such contract as Is alleged In tho
plaintiffs declaration. This has boon
done by proving the defendants sigma.
lure 10 the alleged contract Of subscrip-
ZION to the stock of the company and
Is sufficient to charge tho defendant
with his amount of subscription, less
the payment Of $125, made on the 13
OF May, 1857, anless the defendant has
clearly shown TO your sltifaction by
mo evidence before you either that
the contract OF subscription to the
stock was rendered void and none ef.
fect by reason of .faksS and fraudulent
TtQrsssntations and assurances mado
TO the defendant by the agent of the |
commissioners appointed to procure
subscriptions, at or Immediately before
the subscriptions to the stock, or Qn.
sess the claim has been barred by lapse |
or ehluX OF timc, that Is by tho Statue |
OF Limitations.
NOW as to the plea Of fraud and GOV.
in.
remarl In the first place that fraud |
praoticcd In the inception Of contract |
renders 1t void, that Is to say, /: the
transaction be taintod with fraud, 1t is
no contract aud consequently imposes
no obligation on tho person entering
into 1t. But must also romark TO you
In very emphatic terms, that fraud Is
never 10 he 2resumed; ON the contrary
II must bo clearly proved by tho evi.
dence To make it available as defense.
Now may say that actual or posi-
tive fraud may he defined or described
to be any Ja!Se representation, deceit,
device or artitice resorted to or used
Wy one person with the intent and for
the purpose OF decsici.g and misleadiuq
another psrs9n to his injury. This Is
Tho best general definition can give
OF what Is meant by fraud. 1t Is com.
prehenstve In Its terms, and 1t Is as
true as well In It's moral us in Its lega.
aspect. 1t may TO proved iuferentially
as any other fact Is proved.
Ihave said that fraud must be clear
~ proved In order to constitute a valid
defense, for 1t must be borne in mind
shat where the Circumstance relied up.
on as indicating fraud are of doubtful
natuio or are susceptible Of an snn0ceat
Interpretation or are calculated to raise
but bare suspicion Of fraud In regard
10 The person charged Herewith, they
Will not amount to sufficient evidence
70 establish the fact.
Tho fraud meant or Agnifiad by the
plea OF fraud and ooven" is not mere
ly tsgaI but it is moral fraud as well,
practiced on the defendant by the
Plaintiff or Its authorized agent, OF by
Tue commissioners In this case or their
agent, with the fntsnt to dscsivS and mis-. ,
tsad In respect to the very transaction
In question and which Is the subject
OF controversy between the parties. 1t
mems more than mere false state
ment ignorantly or enormously made
under misapprehension or without
any intention or design to deceive.
1t consists In false representation
or concealment of material facts with
intent to deceive. Fraud occurs where
one party substa utially misrepresentsa
material peculiarly within his own
knowledge In consequence of which a
delusion Is created, or makes a state
ment which he knows to be untrue.
and which Is naturally calculated to
iull the suspicion of careful man and
induce him to forego inquiry into a
matter upon which the other party had
knowledge or information be not ex-