The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1885-11-09
BEFORE JUDGE WALTON.


SATURDAY.-John WinslOw Jones, appellant
from decree of Judge of Insolvency VS.. First Ma
tional Bank ct ais.
Mr. Libby concluded his argument shortly be-
fore IL o'clock. After short recess, Judge Wal
ton charged the jury, finishing at p M, after
which the jury were seated and colloquy ensued
between court and counsel, in which requested
instructions were presented, some OF which were
given and some declined. The judge charged the
Jury generally that the burden of proof was upon
the creditors in all the IS specifications, and be-
fore they found the charges or any of them made
out they must be satisfied by fair preponder-
ance of the evidence He cautioned the jury that
assertions of counsel were not evidence. He read
from the I'D Maine reports, p. 491, the definition
of merchant or trader as used in the insolvent
made remarks under each. After finishing his in
structiOns under the issues, in answer to queS-
tlon from the foreman, whether the withholding
that the debtor withheld them. he said: with
holding books against the consent of Mr. Jones
would not affect him; it would not be withhold
ing or concealng by him. but if it was done with
his knowledge and his consent, so that he was a
party to the Withholding and concealing, the fact
that others were also equally guilty with himself,
would not excuse him.
The Judge said further 81 am requested to in
struct you with regard 70 the effect which the ad.
this case. If Mr.. Jones went to his counsel in a
matter of doubt to obtain their legal advice as to
what it was right and proper for him to do with re-
Spect to these books, and he acted in good faith,
and informed his counsel truly and fully of the
facts, and they advised him that he should not
ouIftuuCT bntSc DOOkS, Or llldt ne WttS uDutT uO
obligation to surrender these books to the assignee
that would be a justification. But if he went to
his counsel, not for the purpose of ascertaining
what his duty required of him, and without the in
tenton to perform his duty in good faith and to get
the aid of counsel to help him how best he could
conceal, and defraud his creditors and keep from
them the evidence of his business relations and
run the least risk that is, if he went to ascertain
how best the thing could be done that would not
excuse him."
He further said: I'm order to sustain the
charge of false swearing, the burden is upon the
creditors to show by preponderance of evidence
that the false swearing was Intentional; an acct
cidental or unintentional error would not Justify
you in answering that question in the Affirmative
81 am also requested by Mr.. Jeness counsel to
instruct you that if you should find that he had in
his examination testified first, that he did not
have certain books, and afterwards produced
such books, that that is not such false swearing
as the statute, under which these proceedings are
had, contemplates. If they were in his posses
sion without his knowledge, so that he was not
knowingly false, and he produced the books as
soon as he found them. that would not be wrong;
but If he knowingly and frauduenty swore that
the books were not in his possession when he
knew they were, the fact that he afterwards pro-
duced them would not condone the offence"
The jury agreed on verdict at D. M, which
was sealed, and will be opened at the coming in
of court Monday mornings