Wilmington daily commercial., 1875-04-13
SECOND EDITION.
The Day Case.

ITS CONTINUATION IN THE U. B. COURT ARGUMENT
OF MIR. HARRINGTON IN OPPOSITION TO THE MO-
TIoN FOR NEW TRIAL.
The motion for trial in the Day case was
further considered yesterday, s. M. Harrington,
Esq, resisting it. He spoke of the time when
the defendants became the sureties of Mr.. Day,
OF the late trial, characterizing the charge as a
quasi criminal one, and insisted that Mr.. Day
is entitled to the benefits Of the yer-
dict of ac1uittal which had been given
him, saying it would be utterly impossible for
the defendants to attempt to contend with the
United = atea in many suits and would be fl
nancial death to them Should Il second jury
render like verdict it would be mere waste of
time and money, and il adverse the defendants
would be obliged to wait for a hearing before
the highest tribunal of the land.
Returning to the charge of the counsel for the
Government that the verdict WAS against the
charge OF the Court, Mr.. II. said that where
there ID any question of account or conflict OF
testimony, and it is left by the Court to be de-
termined by the jury, "can such a verdict be
said to be against the charge of the Court 7"
Where there are facts left to the jury upon
which the Court does not charge, which go to
the integrity of the Governments evidence, aud
they return verdict for the defend
ants can that verdict be against the
charge? Mr.. II. then read from the Judges
charge to show that the questions of fact were
left to the jury and argued where the whole
subject of payment was one of fact and verdict
was given for the defendants that it cannot be
said that such verdict is against the charge.
10 the reason that the verdict was against the
evidence Mr.. Ii. said that If there was a conflict
of Testimony that reason does not apply, and the
verdict should not be questioned, but were the
evidence all OH one eide this might be good
reason. 1t is not for us to say upon what the
verdict was founded it is sufficient to indicate
but one ground Of disputed fact or conflicting
evidence hut will rest the whole case on two
points, viz;
scripts. 1t cannot be doubted that transcripts
are made evidence, but only prinad tacie, and
the Courts are authorized by law to grant judg-
ment OH them but if there arises on the face
of them conflict of evidence it becomes matter
of fact for the jury and they are the judges
what weight they will give to them. The gov
ernment brings a supplementary transcript
here to vindicate the others and we hnd
they "a have put i'll this supplement
arbitrary figures, made mp after the
Jury was sworn from the accounts running
through the whole OF Mr.. Days term. We al
legged that these figures forced the. Governments
balance and discredited the transcripts they
went before the Jury with our impeachment of
them on these very ITEMS and no satisfactory
answer was made to the errors we alleged.
MIR. II. spoke at length as to the unsoundness
of these papers, taking numerous items on the
supplementary transcript, showing it's errors and
defects, and contending that they were arbitra-
ry figures forcing the balance of the Govern
ment claimed. This he thought was enough to
end the motion but he presented another point.
1t is well said that this is question of payment.
The first thing to be determined is
what Mr.. Day is chargeable with.
The question OF debt was of the first i'm
portance The debts were made upon his ori-
ginal receipts and discrepancy appeared i'll the
debts on the face OF the account being unas-
sessed penalties charged on collectors account
$22, ,3G545, but on tho Government account
S71, ,228 2i. Attention was called to this dis
crepancy early in the trial. The Government
| pt nt tbp triaI made exDlanatiOu
of it, They knew it was vital point in the
case and that it was necessary
in order to establish the debit to put in evidence
the original receipts. After eight days examlna-
ton in the Department at Washington the Gov
ernment forwarded only three receipts, aggrega-
ting about $50 600 90 and failed to make up the
TRANSCRIPT debit by $4,000 and confessed this
failure before the jury.
Piled discussing the subject of "Unassessed
Penalties" at great length. He said that it had
been contended that because there was great
deal of evidence, and because the Court bad left
the facts to the jury that it had CIV
en- up all right to review their verdict. Tne
charge was read in which the Court
said to the jury that these transcripts were for
them to pass upon, but it also said that the facts
were proven and were not TO be set aside by
mere attacks of COUNSEL yet he had cited au-
thorties which said that if such were the case it
| surrenders the power OF the Court Because
they found mistake of $40 SO they were not
to disregard the whole of the transcripts.
He contended that the $19 so was stated in the
original transcripts in gross, and in the supple.
mentary transcript in net. He said that he did
not consider that these accounts needed any
vindication at his hands, that he saw no dispo-
stion on the part of the accountants to force
balances on officers OF the Government or their
suretieB.
At o'clock Mr.. Higgins concluded his argu-
ment and the Court adjourned. Judge Brad
ford will probably render his decision IN few
0ays.