The daily gazette., 1882-12-11
BENCH, BAR AND JURY.
Court Proceedings Saturday and This
Morning-The Sherihalty Contest not
Vet Taken Hin

Morning-The Sherihalty Contest not
Yet Taken Up.
Saturday afternoon the case of Charles
e. McCarty VS.. John J. Lockwood, was
continued.
George Esselstein, sworn in the morning,
was recalled. He stated that Sipperly owed
McCarty bill OF $500 and gave him Lock.
woods note In part payment of the same:
witness was present when note was given
McCarty; Sipperly then said Lockwood was
responsible man, and fully able to pay the
note; the transaction took place few days
before the note was payable.
Cross-examiped Sipperly assured Nc
Carly that the note was as good as wheat;
the transfer took place about August 1,
1873; Slpperly did not agree to see that the
note was paid; McCarty was In the insur-
ance business in Rhnebecx, N. Y.
Mr.. Lore briefly addressed the Jury for
the plaintiff. He declared that, notwith-
standing the circumstances under which the
note was given. McCarty was the innocent
holder of the note, and when he took 1t he
did not know what 1t had been given for.
He claimed that no matter what the differ
ences had d-been between Lockwood and Sip
perly, McCarty, who had taken the note In
good faith and for valuable consideration.
The law stated that in such cases an inno-
cent holder should not be made the suf-
ferer.
Mr.. Biggs then cited number of cases
In which it was shown that note obtained
by fraud need not be paid by the maker
thereof. 1t was for the plaintiffs counsel
to prove that Mr.. McCarty was an innocent
holder Of the note. He then addressed the
jury, basing his remarks upon the assertion
that d. +. Sipperly had attempted to per-
petrate fraud upon Mr.. Lockwood. When
Lockwood bought the patent right it also
included number of pruning knives,
which, when sold, would have more than
paid for the note given but the defendent
had never received the knives. He thought
the reason that McCarty did not come to
sue the note himself as both he and
Sipperly were working the transaction for
all it was worth. He hardly believed that
McCarty deposited the note by payment,
inasmuch as It was not endorsed by him.
The suppostion was that Sipperly himself
deposited the note in the Park National
Bank, and that then it was protested. The
case was to be decided by the preponderance
of truth.
He concluded by asking the court to
strike out that portion of the testimony of
Mr. Esselstein which stated that the note
had been deposited in the Rhinebeck,
N. Y, by McCarty prior to the time
it was protested. He made the request on
the ground that the portion alluded to was
only hearsay.
As Mr.. Lore had vet to speak, and
as many Of the jsrors wished to leave for
home, court adjourned at . o'clock until 10
O'Clock this morning.
THIS MoRNING's SESSION.
When court opened this morning Mr..
Biggs lenewed his request that certain por-
tions of Mr.. Esselstrin's testimony, which
were only hearsay, should he ruled out. He
also read number Of citations and con-
cluded by presenting to the court a written
statement of the legal points, upon which
he desired the bench to charge the jury.
At 10 So he began his closing argument
for the plaintiff lie commenced
by paying tribute to the able
manner in which the learned counsel
on the other ,ige had conducted the
case, adding that Mr.. Lore, by his shrewd
management, had gotten in every point at
all touching upon the subject. The case
was then fully reviewed, the principal and
almost the sole argument being that Mr..
MeCarty was an innocent holder. He also
declared that IL Sipperly himself had sued
for the face of the note he would
have been able to recover, inasmuch
as no fraud was shown. A part of
the considerations for which the
note was given was obtained by Lockwood,
who, in refusing to pay the amount claimed,
only gave as an excuse "no funds" at no
time claiming fraud. Partial failure to full
fill a contract did not bar the payment OF
note. Lockwood should have paid the note
and then, If he felt he had been defrauded,
he could have sued Sipperly for breach of
contract.
Justice Wootten charged the jury. When
he had stated the facts of the case, he said
1t was well-setted fact Of law that fraud
vitiated a contract The first thing for the
jury 10 consider, he said, was whether the
original transaction was II fraud and whether
McCarty, the plaintiff III the suit, had
knowledge of the fraud at the time he took
the note. If 1t has been proved that the
knowledge of the fraudulent transactions
had bcen brought home to McCarty he was
not entitled to consideration. But If it
is proved that he had no such knowledge he
is entitled to recover. Ii he took the note
from Sipperly for valuable consideration it
was McCarty's place to have shown. The
whole case turned on the questions,
even il a gross fraud had been perpctrated
by Sippery upon Lockwood, was whether
McCarty had any knowledge of such fraud
II not he was entitled to the amount of the
note with interest from the time 1t was due
and the cost of protest.
At II, Is the iury withdrew,