Daily globe., 1879-12-13
THE ANDERSON. SUIT.
Second Day of the Action Against the First
National Bank-The Plaintiff Rests and

National Bank-The Plaintiff Rests and
tho Court Denies a Motion to Dismiss.
The trial of the Anderson case. or, more
properly, his case against Horace Thompson,
was resumed, yesterday, in the United States
circuit court. .... -........--..-.--. ...
The examination Of Mr. n. p. Upham,
cashiersof the First National bank, was con-
itinued. He, with the bank books. assisted in
their explanation by j. M. Wander
hoof, occupied the time Of tho court
from 10 O'clock A. NJ. to o'clock
p. NJ, with an interval for the blessed hour of
dinner. Besides the bank books, the firm
books of Strong & Anderson were also intro.
ducsd for explanation, Mr.. B. B. Baker, former
bookkeeper of the firm, and Mr.. Gillett, book
keeper for W.. l.. Anderson, acting as the
human index for the last named books.
Thus tho novel sight was presented
of four witnesses on the stand at the same time
with the simultaneous exhibition of two
sets of books, all in one case. r.... -.I ~,
MIR. Uphsm acted as spokesman for the 9TH
ers, mostly, with here and there an explanatory
utterance by Mr.. Baker from the pages Of the
Strong & Anderson books. The examination was
in every sense a continuance of that of the
previous day. In other words, r. O.. Strong i
Co.'s account with the First National bank
was followed from the time of forming the
partnership of strQIg 4 Anderson up to it's
elimination on the books of the bank. Item
by item this tedious course was pur-
sued, and the whole business can be
summarized in the statement, that like
the instance mentioned as having occurl ed in
March; 1879, others were found, where notes of
r. 0. Strong Go. had been paid by checks
draw n against Strong d Anderson's account.
Without specifying instances, the sum Of this
kind of Transaction was proved to reach the
figures of SO, 500, at least.
Following Mr.. Upham the name of r. o.,
Strong was called. He took the stand, but to
the disappointment of the many in attendance
was let off with one question:, the answer in
dicating what it was: Il made formal set
tlement with my former partner by buying
him out, in April Of 1871"
With this Dir. Strong gave way for Horace
Thompson. .- II
Here again the audience were doomed to dis
appointment. He was let off, after saying his
bank was the banker of Strong & 90, or Rich.
ardson, and that he didn't remember ANYTHING
about when Strong and Richardson had made q
settlement. He only knew Richardson with
drew, and that's ell. -.="
Mr.. Gillett was recalled. He said he was
bookkeeper of Strong & Anderson in Nav of
1878. :. ~ - :
\ He was next asked if he remembered about
that time that Strong had made cash sale and
that he had not caused it to be entered on the
books.
Judge Flandrau objected, as it wasn't mate
rial or relevant.
MIR. Pierce contended it was. The defense
relied On Strongs books in this matter, and be
wanted to show they had not been kept cor.
rectly, but with the intent to cheat, Further.
more, 1t had been shown that Strong had made
cash deposits to take up his notes in Thomp-
sons bank. He wanted to show that this cash
deposlted had been gotten from sales, which
were never accounted for. --.
The court held that the question should not
be put as the plaintiff had failed to Join Strong
and the First National bank in a conspiracy to
defraud. The action was against the bank
alone. Exception noted.
Mr. Gillett closed his testimony with the as
sertio1 that Anderson knew nothing about
bookkeeping and he was salesman in the
store. and Strong, in addition to being sales
man, had a general control Of the business.
The plaintiff rested his case, and no sooner
had the rest' been announced than Judge
Flandrau was prompt with motion to dismiss
the case. He very briefly contended that the
plaintiff had made no case. He had taken his
case out of court on the statute of limitation
ne had shown that both partners in the firm of
Strong Il Anderson had checked against the
firms funds to pay private debts. And this
being agreed by this action, if nothing more,
barred him from remedy.
Third, The settlement of Anderson with
Strong, when the dissolution of the firm took
place further barred him from remedy. He
had lost nothing moreover by the transaction,
as all Strong's payments with Strong & Ander-
sons funds were charged against Strong on the
firms books.
Mr.. Pierce replied ct some length. In con.
neotion with the interposition of the statute of
Limitation as a bar to trial, no read the State
statute on the subject, and then proceeded to
show what the statute meant By the word
fraud used therein. He contended that fraud
was charged, whether, from design or not, it
was fraud in law, and as such the case was
triable under the statute. 1t was,
too, such fraud that the plaintiff
was Kept from it, or the date of its happening.
until six years after it happened. And that
under the circumstances the statute applied
only to tho time of the discovery of the fraud,
and therefore the case was not barred. MIR.
Pierce further cited that the bank had admit
ted Strong's indebtedness. and the books had
shown that Anderson & Strong's money had
gone to pay Strong's debts. whether accepted
by defendant, with the design to defraud, did
not matter. The mere fact of it's acceptance.
the bank being banker for both parties, con
stituted legal fraud, as contemplated in the
statute. Mr.. Pierce further contended that the
case should not be dismissed, and cited from
the authorities at length and voluminously to
sustain him. =. :
The court said that there seemed testi-
mony enough adduced to have the case 90
to the jury, and it wasn't mere sc1ntilla
either, but evidence to show that the funds of
Strong Anderson had been diverted to the
payment of Strong's, or Strong d, Co.'s, in
debtedness. Under this phase of the case, the
court thought it should go to the jury, unless
1t could be shown that the statute of limita-
ton was a bar GzaJ
The court then reviewed che practice OBJ
tanning IN State courts regarding the statute of
Limitation, and if it was interpreted to mean
that 1t applied six years after the discovery
and not the commission of the fraud, he felt
inclined to think the same would hold good in
federal courts, either in cases of law or in
equity.
In alluding to the charge of fraud the court
remarked that this feature must be considered: ::
that it was complained that defendant had
concealed the course of action. In this con-
nectlon the court defined the duties of banks
as between partners, as individuals and "a a
hrm. IT trm funds were received in payment
of partners debts it was legal fraud unless
an understanding, etc., were had between the
bank and the firm as individuals but if Gus
tom made it otherwise this would not hold
good. Ordinarily such was the case, and in
this case he thought the plea of the statute
might be entertained, but in view of the fact
that there was evidence pertinent to the cause
at issue submitted. he didn't feel inclined to
take the case from the Jury and therefore
would deny the motion to dismiss.
The hour Of $3.50 o'clock P. M. being marked
up on the face of time in full view, the court
adjourned until 10 o'clock A. NJ. to-day. -
LIFE IN LEADYIL1E.
The Sheriff of that Delightful Region in
'. II st. Paul.
MI: Andrew J. Wampler, the druggist, is
entertaining an old friend and renewing
many pleasant memories, in the person of