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

that plaintiffs did not bring the suit within six
years from the time of the transaction. Now,
that is an Issue the defendants must establish
that is an affirmative issue upon our part, and
we must establish the fact that plaintiffs
did not bring the suit within six years
from the time the right OF action accrued.
1T plaintiffs brought their suit day after six
years expired, then there is suit here. and the
Court will so tell you, unless something hap
pened that stopped the statute of limitations
from running. What do plaintiffs claim stopped
It'll They plead two matters to suspend the run
ming of the statute First: That after the sale
New and Wright concealed from Morrison the
condition of the bank. New stayed in the bank
three or four days after the sale, at request of
Morrison. After that he had no control over it
had nothing whatever TO do with it, John G.
Wright stayed in the bank until July 81, 1873,
as president at the request of Mr. Morrison.
No juror in this case can point me to a single
fact or circumstance anywhere in this evidence
That even remotely tends to prove that either
New or Wright concealed from Mr.. Morrison,
after the SALE any fact or circumstance con-
corning the condition of the bank, any fact
whatever with regard to that bank. You can
not find any such proof. 1t is not in the evil
denee But plaintiffs also plead that Mr.. New
was absent as Assistant Secretary of the United
States Treasury and that therefore the statute
did not run i'll his behalf, although we have
proved that his family continuously resided here
in his family residence during his absence, and
that IN this very suit service was had upon him
by leaving copy at his residence, while
he was Assistant Secretary of the Treasury.
Plaintiffs also plead that John G. Wright sus-
pended, hung up and abandoned his residence in
Indiana, because, in 1881, he went to Europe for
pleasure trip This plea is almost too rdcu
lous for serious consideration They say in the
plea that Wright closed up his house, which he
did not do as is clearly in proof but, even if he
had and had kept his business office open, as is
clearly proved, his absence could not and did not
stop the statute of limitations from running
Now, gentlemen, fraud is never to be pre-
sumed: 1T must always be proved, and it must be
proved by clear and satisfactory evidence. The
mere bowling of fraud does not make proof of
fraud Fraud is never, under any circumstances,
presumed. Honesty and fair dealing are always
presumed, and the presumption stands until re-
butted by convincing proof. You cannot, just
because some lawyer asks you to, presume that
man has committed fraud; you must have
the proof of facts that make fraud Now
again. even positive proof of false or erroneous
representations never prove fraud, unless it be
also proved that they were purposely, know
ingly and willfuy made, for the purpose of de-
ceiving and defraueing If q man comes to you
and asks you with regard to article that you
have to sell, and you honestly tell him just what
you believe to be the facts with regard to that art
Gle, the fact that you might be badly mistaken, and
therefore msrepresent the facts, does not make
you guilty of q fraud; not at all. If you were to
believe that John G. New and John G. Wright
were mistaken in any statement that they made
to Mr.. Morrison, that would not prove them
guilty OF fraud; not by any manner of means.
You will have to 60 further than that a good deal,
and find from the evidence that they purposely,
knowingly willfully, and for the express purpose
OF decelvlng, made statements which they then
knew to be false An honest mistake is no fraud
Then, again, gentlemen, before you can, by any
possibility, be required to consider the condition
of the First National Bank in February, 1873,
YOU must find that plaintiffs have proved, af
Tentatively and by a clear preponderance of
a a hn md onHi
as such, bought this stock. 1t will not
do for them to prove that the Indiana
Banking Company, after this stock was bought,
may have become interested in it; that is no
proof; 1t will not do for them to prove, or at
tempt to prove, that the Indiana Banking Com
pany may have furnished some Of the means
with which the stock was paid for; that is no
proof that the Indiana Banking Company was
the original purchaser Of the stock from New and
Wright. In order to so find, you must first find.
by clear preponderance of the evidence. that
tho Indiana Banking Company, at and before
this purchase, was in fact. the real actor; the
real purchaser. Now gentlemen you will find
that an impossbility. if you are guided and con-
trOlled by the evidence in this case, rather
than by statements of plaintiffs counsel un-
supported by the proof.
Now, let US try to get rid of some Of the drift
wood that has been lugged in here without any
possible connection with the case. You are not
trying Mr.. English. gentlemen of the Jury
William H English has been witness on this
stand, and it has been charged that William H.
English is guilty OF all the wrongs that Slaughter
ever committed. That is not an issue that you
are to try. not at all; nor are you here to try
First National Bank into circulation
down South, where it would do
the most good in war times, not at all;
that IS not an issue in this case. Nor are you
here to try Mr. Lynch. nor Mr. McCutcheon, nor
Mr.. Holiday, nor Mr.. Bates; nor, even, are you
here to try the condition of the First National
Bank from the year 1863 to 1873. You have not
anything to do with that except merely as an
incident and very trAing one at that. You
are not here for that purpose. There is no issue
joined here that will allow that. You cannot so
to your juryroom and consider under the evil
dence In this case, the condition of the First
National Bank at any time prior to 1878 as an
element in this case One thing more. gentle
men; You are not here to try the condition of
the First National Bank now. / want you to
remember that. Suppose any juror here were
called up today with reference to u transaction
that occurred eight years ago. with reference to
some trade then made--the sale of some hogs,
or some steers, or some hay, or some corn-and
the question should come up: What was it worth
at that time! and they should confront you with
the present low price or absolute worthlessness
of the article sold eight years ago; would You
think that just or right2 You not
this box to try the condition of the First
National Bank NOW; in fact, think under the
clean issues in the case. when you come to hear
the instructions of the Court, you will find you
are not here to try the condition of the First
National Bank at any time, because you never
reach that point in this case if the case goes
to this jury on instructions of the Court to the
law applicable to the facts proved by the
evidence. Now, another thing; if there is any
time In the world that you can look into the
condition of the First National Bank, it is on
the 23d day of February, 1878, and no other day.
Now. want to call your attention to seven
different points that must be established by
preponGerance of the evidence before you can
be required to consider what the condition Of the
First National Bank was on the 23d day of Feb
ruary, 1878. Plaintiffs counsel have thus far
spent their entire time in the abuse of witnesses
and in talking about the condition of the First
National Bank, and of the Indiana Banking
Company. l say to you, these not the issues
in the case. and are wholly immaterial
until you have decided seven other
points. Now, want to call
your attention one by one, to just what these