Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1882-05-05

Jus, Esq, Clerk of the Middle
Law District:
hESsEBEc COUNTY CASE.
-"".onants OF Windsor vs. John pone and
C."ens. Baker and Baker for plainfiff. 4
". Andrews of Augusta for defendants -
ms case was tried at the October torn ..
supreme Judicial Court, 1880. The ;n--
rendered verdict for plaintiff for s2sss. 80
ineser,pf.-The Auditors report found a
auce OF %, 292. 10 against the defendants.
Ola only OF the items of that report were in
Iiontfoversy at the trial. They were a. fol.
| =, (See schedule ga" pages IL and "a of n.
the report of the case. Vi the
90 30 nc: Moody, No. 90, April l, 1870. $500.
~. Levi Perkins, No. 40, 100
augusta Savings Bank, No. SO.
| May l7,ls7O, zoo
~. No. GO. L" - - GO
81. No. l4S, Nov /, 1872. I" 90s
e" page 2l.) "e'''e
H. VIM. Fl. Peva. note May IA, 1864
paid April l, 1876, since close of ar
"' III '''is action, $500
| The first five items above spec;6ed v,.
| charged by the Auditor to the defendant. for
Town orders drawn by them as Selectmen
anu entered on the order-book as hired
| money; and no credit was allowed aOa;ns,
.hese charges except $500 for an outstanding
oruer pald at the Augusta Savings Bank and
[n-nnu oy the Auditor against the SlO5o
| tsooO and $500 charged The defendants
claimed at the trial that these charges wa,a
erroneous; that these town orders were nsed
| Dy them In taking up old orders, for which
they should have received credit in the fnII
amount charged in the Auditors account
| MS claim Is still urged as a ground for a
ne" tfial, except in regard to No. 81. for
| soo; In relation to which it is not arpued
that the jury erred in finding for the plaintiffs
Inc sixth item above specified-the Peya
note 1t is claimed was paid Ly the defend
ants by the following order. charged to them
IN schedule "A" page Is: 1874, Levi Perkins.
| 40. 1853, March 90, 1876, $780, and that the
! auditor, while charging them with the order.
l gives them no credit for the use of the funds
IN paying the note of the town.
These were all the points of controversy
| at the trial. If they were all determined in
favor OF the defendants, there would still be
balance OF 1921. 10 due the town: and if to
THIS be added the sos, in regard to which
the defendants do not now claim that the evil
I dence is IN their favor, the balance against
them would be S942. 10. The verdict W as for
the plaintiffs in the sum of So ,S69.32
| The jury having been instructed to allow
| interest from the date of the writ it is evil
dent upon computation that they reached
their verdict by deducting $1,000 from the
amount found due by the auditor, and adding
interest according to the rule given In
each instance in which the auditors report
| was contrOverted, the sum in dispute was
specific one. The question submitted to the
jury, as to each of the ilems above specified.
was whether specific sum should be above ed
or disallowed. The conclusion, therefore, is
| reasonably clear, that the only method by
which the jury, under the instructions given,
could have made deduction of 81 900, from
| the auditors report, was by striking the
| first two items specified, 5000 and 500,
| from the list of charges against the defend
ants. So far as the motions for new trial are
| concerned, we think the first two items spec
| flied may properly be regarded as having
been disposed of by the jury in favor of the
defendants. The item af sos is no longer
in dispute. Upon the first motion, then.
| only two questions remain:
/. Is the verdict against evidence in not
allowing the full credit of 81 $50, instead of
$500 only-making a difference of $3.50?
2. Is the verdict against evidence in not
crediting them with the payment of the Peva
note?
Our opinion is, that, upon the evidence, the
| first of these credits, $3.50, as claimed by
| the defendants, should have been
| allowed. The manner in which the
! entries relating to this transaction appear
| on the town-order book, is shown by page 81
of the report.
1t is proved that orders given to take up
| outstanding orders were charged in this
| hired money column on the order-book. Mr.
| Pierce testifies that the orders for $500 and
$3.50 were given to the Augusta Savings
Bank to take up old orders of the town.
| which were destroyed after the settlement
| with the treasurer at the end of the year.
The fact of that method of procedure at that
date, we think, is proved; and however OBJ
jectionable it may have been, we cannot per-
| ceive that in this instance any fraudulent in
tent is manifest. The testimony of MIR. Smith,
the bank treasurer. does not contradict MIR.
Pierce on this point.
He saws II am unable to say now whether
the $50 was actually cash paid out at that
| time, or whether they were orders held as
| cash So far as the bank was concerned 1t was
cash. 1t might have consisted of orders W hlch
| Law in my drawer as cash. When an order
was brought into the bank for discount or Tor
sale, nv practice was to treat it as cash: vi
course have no data by which | should be
| able TO swear positively that that 500 con-
| sisted OF orders WHICH L Heiu as CASH, oo'
| have no doubt it might have been so.
Mr.. Smith also testifies that the receipt
"A."(page go of the report) dated May -,
| 1870. related to the transaction of the 18th,
and thi. receipt we think tends to corroborate
the statement of Mr.. Pierce that the Slooo
was used wholly to pay outstanding orders
II shows that the bank then held town orders,
exceeding in amount the Sl050, which were
on that day delivered to Mr.. Pierce, he pay
| iny the interest which had accrued upon
them and taking that receipt therefor. Re
ceipt &C. (same page of the report) shows
that one of these orders, for $500, was In the
hank as early as January l. 1870 when
interest was paid upon it by Mr.. Pierce.
Mr.. Wight the original holder OF the note
and of one of the orders specified in the re-
ca;nt "A " testifies to the best of his knowi-
edge and belief that they were paid to HIM oy
| the town of Windsor before 1863, but Dy ~ha'
| ofy;cor of the town he does not recollect.
This Is scarcely more than an impression
and a long time had elapsed. 1t may De
reconciled with the other testimony, II we
conclude that he sold them instead OF coiiec'-
4 ing them of the town.
I'VE think the weight of evidence Is very
claarIv in favor of the view that this slooo
w.s used by Mr.. Pierce for municipal pur-
| A.. na, previous orders-and that IN