New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-05-29
rrrLLE pErTLEOGGLNG.


The Times seeks to wrigglc out of the LOthrop
hole. 1t has discovered these words ut the
close of Judge Potters opinion in the New
York Reports: "A majority of the judges did
u not concur in all the views expressed in the
foregoing opinion; but on other grounds.
aorally stated by DEMO, Chief Justice, and
Porter, Judge. they all concurrcd with Judge
Potter in his conclusion rs to the judgment to
abe rendered. The Times charges US with
suppressing this statement and with mlsreprc-
senting the action of Judge Potter's associates.
That is simply a ouble-barrelled falsehood. In
the first article Oh this case, published in THE
TRIBUNE on Thursday of last week. the
language quoted by The Times appears word for
word. The fact that all the judges did not
concur q in all the views" expressed in the
opinion was not suppressed; and the statement
that the decision reached by Judge Potter was
confirmed by his colleagues on the bench was
strictly true since "they all concurrcd with
Judge Potter in his conclusion as TO the judg-
ment TO be rendered"
Not satisfied with one miserable exhibition
of pettifogging, The Times attempts TO reverse
the decision Of the Court of Appeals by quoting
from two opinions in the General Term. Now
even if it were true that the court below were
al variance with the higher court respecting the
fraudulent character of the claim and the
concealmcnt of facts by the counsel in the case,
the attempt to override the decision of the
highest tribunal by means of the judgment of
an in ferior court would be fat-witted. Judicial
procedure does not move backward like the
crab.
But The Timss's assumption is not true The
two Judges of the lower court whose opinions
it cites virtually held that notwithstanding the
cOnceal.nent (Which Was not denied, the State
and not Mr. Lothrop was bound to present to
the Board of Audit the facts concealed. Judge
Robertson argued that Mr. Lothrop l." did not
undertake TO state all material facts; and
Judge PerrepOnt in like manner held that it
was the duty of the State to present the facts
concealed and that it was not the business of
the counsel (Mr. Lothrop) to seek for defences to
it, On this ground the General Term dis
sented from the decision in Special Term But
the three courts are on record as in full agree
ment on the essential fact of concealment OF
facts in consequence of which n fraudulent
claim was audited. Judge Potter says:
The following material findings OF fact by the uogo on
tho trial part OF the oise and. as they stand
unrerersed bn the General Term BY the provision of
the statute they The Iets upon Whch his court are 10
pronounce heu ju f0MeNA Those findings are as fol-
lows:
That the allegations in the said written communica.
lions by Mr. LOthrop TO said Board Of State Audors that
the debt to the Phoenix Bank never has in fact been
paid and hat he toOuli fIiriy atd Juy sLle 10 said
Board epery defence he had heard limited at and the
statement which he did therein MAKO regard TO the
alleged supposed defences aud his omission and the
omission OF said Phoenix Bank modify said Board OF the
said notice given by the PhGnI Bank 10 the River
Ran Bank not to pay sac draft for 81 zoos or of the
settlement made by said Stewart with said bank
designed and intended to msead said Board OF
State Auditors tho actual and merits OF the
relating to said claim aud that such allegations
were made and such omissions practisad n the full
belief that actual facts OF the case or such notice
thereof would lead ~ inquiry should come 10 the
knowledge OF said Board, the said claim would be
rejected and disaowed unioun1ed In iustice or
equity.
That was the finding of fact by the judge in
Special Term, which by the records was not
reversed by the General Term and which the
Court of Appeals, by concurring in Judge
Potter's Judgment adopted as its own.
Whether Mr. LOthrOp was or was not bound to
know and declare the defences against tho
fraudulent claim was question on which
division of opinion appeared in General Term.
Two judges thought the State was bound to
disclose the concealed facts. Judge Potter
sternly set aside all bubbles of legal casuistry.
"The facts he said, establish q case of
"active, designed and intended flaud on the
apart of the defendants. not only in the state
"ments, allegations and representations made
"but designed and intended fraud in what
3was omitted to be stated, which in law