The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1885-09-12

had been going down for ten years. What nexti
After all these dissolutions and changes not
word of complaint uttered until more than
six years had elapsed after the transaction was
absolutely closed, and then this suit was brought
Who brings the suitl Not the Indiana Banking
Company. 1t could not bring it Everybody who
knows anything about the law knows that; and
If these plaintiffs now claim that they have not
any interest in the suit, and that the Indiana
Banking Company is the real party in interest,
that alone would suffice to absolutely blot
counsel know that to be the law.
Therefore. all this stuff and pumping for tears,
in regard to the breaking up of the Indiana
Banking Company by this transaction, is the
merest humbug. There is no evidence to that
effect. Who swore to ite No witness who has
been sw orn in this case has testified on any such
point This is simply review of the case on
undisputed facts. What do you say about it'll
Suppose you should take it to your jury room
on absolutely undisputed facts what would you
be obliged to dol You would be obliged to say,
in the first place, that there is case made out:
and, in the second place, even If there had been
a case, the right of action accrued more than six
years before this suit was commenced and is
therefore barred by the statute of limitations.
When Mr.. Shepard and Mr.. Ketcham arose to
address you, each Of them seized the complaint,
and reasonably expected they might undertake
to tell you what the issues you are to try really
are, but submit to you now, that you have not
heard either of them attempt to define single
one of the issues joined by the
pleadings in the case; they do not want to
define them. Their whole theory has been to
throw mud, blacken the air with mud, dust,
smoke, and statements that are not in the evil
dence, for the purpose of beclouding your minds
with prejudice, and causing you to look away
from the case in issue. What are the issues in
this easel Shepard did not tell you Ketcham
did not tell you; neither of them read you the
complaint: Judge Claypool will not read it; l
hope he will
Mr. CLAYPooI.-I do not believe he will.
Mr.. BUTLER-He shakes his head.
1t is not their purpose, gentlemen, that you
should understand the issues; that is not what
they want. But now, let us see what the issues
really are | called your attention to some of
these issues in my opening statement. The
Court will instruct you, | think, that where
suit is grounded on fraud that the matter con-
shutting the alleged fraud must be specifically
set forth in the complaint. 1t is not sufficient to
simply howl fraud in complaint; plaintiffs
must set out specifically IN what the fraud con-
sists 1t may do for lawyers who have bad
case, and nothing else to do, to howl fraud to
Jury, without any proof oft, but when they write
complaint, the law obliges them to set out
what the fraud was, and in what it consisted.
The whole theory of this is that there
were false representations made by New and
Wright at the time they sold their stock to
Morrison and Miller. want to call your atten-
ton to the chief averments OF the complaint.
The complaint is in two paragraphs. One of the
leading points in the first paragraph is that the
Indiana Banking Company, and all the members
OF that firm, were IN entire ignorance of the
condition of the First National Bank when this
trade was made. Now, as call your attention to
that charge, let your minds run back over the
evidence: look at these numerous exhibits
written by Mr.. Morrison, not one of which could
by any possibility have been made without an
investigation OF the bank, and an examination
more or less careful-of its assets. That is the
first charge; that plaintiffs were in entire igno
rance, and that New and Wright knew they
were In entire ignorance, and knowing that
fon+ do fnsv, folc uV1 fua,,I ,,In ant
sentations.' l want to call your attention to
what those representations were because those
are the ayerments plaintiffs must prove They
must prove the false representations, or sufficient
of them. as charged in one or the other of the
paragraphs of this complaint, before they can, by
any possibility, ask for any finding whatever.
Let me quote from the complaint:
1t charges that New and Wright we'll knew
that the bank was burdened with large amount
of worthless paper and poor property; that
there was large amount of forged United
States bonds held by the bank" Who swore to
anything of that kinda 1t charges, also, that
there $500, 600 of worthless paper" That,
''to induce Morrison to buy New and Wright
made the following false representations" What
is the first one? The first one is, that they rep
resented that the stock was worth 81 to ST.
Defendants were selling at Lea. Would they
not be fools to sell at Sligo when they thought
the stock worth $22 Still the evidence is
that they were selling a controlling interest in
this bank at $l65 per share. That is one of the
alleged false representations you have got
to consider in deciding the case. What proof
can you find to sustain it, You are not sworn to
try this case on the statements of Shepard and
ketcham You are sworn to try the case on the
issues Joined in the pleadings. These are the
issues am calling your attention TO-. These
charges quotations from the complaint; that
the stock was worth 81 to $1-100 per cent pre-
mum that there were no skeletons in their
closets" that there was nothing rot
ten in their bank" ''that all the
\ oI1
were all good beyond doubt" No human being
believes that any such representations were
made. Who has heard in this particle Of
evidence that tends to prove them? No sane
man ever asserted with regard to any bank that
had been in business fourteen years that all the
bills and notes in the bank were good beyond
doubt. Here is another charge from the COM
plant; that there was an undoubted surplus of
$SO0,000." An undoubted surplus of $S00,000!
Who believes that any such representation was
made by New Wrighta Who swore to any
such representation If there was an undoubted
surplus of 100000 the stock would be worth
moro than two dollars to one The next charge
is that Morrison, being ignorant of the condi-
ton of the bank, relied upon these representa-
tons and bought 9. $50 shares of the stock" No
body has ever pretended to swear that there was
more than ., $50 shares of stock sold by New and
Wright These plaintiffs did not even look at
the stock account of Morrison and Miller, or the
stock certificates but state in their complaint
in both paragraphs of IL, that there were 2, 1856
shares of stock sold. Then the complaint goes
on to charge that ''there was, in fact, worth
less and unsecured paper amounting TO over
$500 900 in the bank" and that there were
$40, 900 of forged United States bonds then held
by the bank" These are the charges that you
have got to pass on. What do you think about
them9 Who has pretended to prove or swear to
the truth of any one of these charges2
In the second paragraph of the complaint the
false representations charged are good deal like
those in the first paragraph; but there is little
difference. Plaintiffs charge again, in the sec
ond paragraph, that there surplus of
$780, 000" that there was so 385 shares of stock
solo," and that 1898, 525 was paid for it. Nobody
has heard any proof tending to support these
averments. The second paragraph also charges
500, 900 to one William H. English. Have you
heard any proof of that kind in this case? This
paragraph also charges that the Indiana Banking