Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1885-12-17
FHEe COURTS ADJOURN
HHn oAsB or THE FARME az BANK
AND III. IL. TaTNaLL.


Examination of r.. II. Banks of the firm
OF Forbes 4 Banks, was continued, in the
case of England against Forbes x Banks.
The witness stated that the goods of his
firm was levied upon by the sheriff on the
11th of May, 1884, on the writ of execu-
tion of the Malleable Iron Company the
firm was not closed up on the judgment
bond.
Joseph H. Kirk. was sworn. He was
book-keeper for Forbes d Banks when the
sheriff made his levy; he kept an account
of the spokes that were taken away
on the writ of replevin for England;
there were about is, 1877 spokes taken and
1913 were material that had been OBJ
tanned from other parties.
Robert L. Rogers testified to England's
man taking away spokss that did not
belong to his lot.
Harry w. Banks testified that Forbes
a. Banks paid the freight on the England
spokes; when England replevined the
spokes he took 5000 or 1000 spokes that
came from down country; England said
he didn't care whether they were all his
own or not.
Edwin r. Banks stated that he had
gotten Judgment bond and that by the
advice of his counsel he had had il en-
tered up, but had told his attorney not to
close the mill up.
William II. Lyman stated that he had
acted rs attorney for Edwin II. Banks
and had written the Judgment bond he
advised that the'bond be entered, exeeu-
tion issued and levy made, and then ex-
ecution stayed Banks stated that his OBJ
ject was to let the firm run on he simply
desired to be secured witness told him
the levy would hold good for three years.
The defence here rested, and Aaron @.
England was recalled by the plaintiff and
stated that the spokes had laid in the
woods all winter before they were sold to
Forbes & Banks; he said that when he
took his slabs from Forbes a. Banks he
took none from any piles that did not
contain slabs of his own; he took no
spokes but what were his while he was
there; he was not there oil the time.
Thomas Webb said he took no spokes
that were not England's to the best of his
knowledge; the defendants pointed out
some that they told him to take, but he
did not do it because they were not Mr..
England's.
The plaintiff here rested and court took
a recess until Thursday morning at 10
o'clock.
Superior court met ut 10 'clock Thurs
day incoming. The argument in the case of
England against Forbes 4 Banks took up
nearly all the session. MIR. HoffeclSer
opened for tue plaintiff. He asked the
court to charge that if party purchases
material knowing he cannot pay for it he
is guilty of fraud. He stated to the jury
thai if they gave verdict for theplaintif
1t would nuke the defendant pay for the
spokes in controversy, the damages in
CURED by the plaintiff by reason of the
trouble he was put to, and the costs Of
the suit. The plaintiff having alreadyre-
covered 1900 Of his spokes, the verdict
would confirm them to him. Mr.. Hof-
feeker spoke three-quarters of an hour.
He was followed by Thomas Davis, ESD,
for the defendent. Previous to Mr.. Davis
opening, Mr.. Nields asked the court to
charge, upon the question of fraud, that
unless the contract was directly induced
by fraudulent representation even if the
intention was fraud, the plaintiff could
not obtain verdict on that ground. Also,
il it was proved that the plaintiff re-
plevined and took away spokes that did
not belong to him, he could not get
verdict on the ground that the contract
was O bona fide one, and If the jury
could not do that, he asked for verdict
the defendent taken away on the suit of
replevin by the plaintiff.
Mr.. Nieids followed for the defendant,
first with citation of authorities upon
the question of obtaining goods under
false pretences. He asked the jury for
pay for all the spokes that were taken
which England had never owned. He
also asked for a verdict for all the spokes
obtained under the contract with Eng
land, which he claimed were obtained
without fraud, in addition to the bills
paid by Forbes Il Banks for freight
Mr.. Higgins followed with the closing
argument. He said not a dollar had been
paid on these spokes and that if the jury
gave verdict against the plaintiff, the
defendant would get the spokes without
paying cent for them. He claimed that
the execution was hanging over the de-
PENDANTS at the time the contract was
made, and they knew it. Under the con-
ditions he declared the contract was no
sale in the eye of the law; that it was
voidable at the plaintiffs election, and
that he did elect to SO make it, and, &,
therefore, replevined the material. In
conclusion, he asked for u verdict for
plaintiff for nominal damages, which is
all they can ask for under the practice of
this court
Court then adjourned until 3 o'clock.
Immediately after the opening of court
in the afternoon, the charge tn the
Jury in the case of England VS.. Forbes *
Banks was delivered by Chief Justice
Cornegys. The charge detailed at length
the law relating TO sales, and the effect OF
representations of solyency madeto effect
sales. The jury were also told that il
they believed the plaintiff, under his re
plevin, took goods belonging to the de
PENDANTS, they could award the latter
verdict for the value of thegoods so taken
and at the same time allow the plalntlt
for the damages claimed by him. At 3.3t
O'Clock the jury retired.
In the case OF the Eumborman's No
tional Bank VS.. George Ohurchman, il
was announced that Judgment was allowed
tho plaintiff, the amount to be ascertainet
by the prothonotary.
A jury WAS next drawn to try anothe
replevin case against Forbes Il Banks ant
ex-Sheriff Martin, tho plaintiff beinl
Howard M. Dubois of Philadelphia Til
same counsel conducted tho case.
At i.A5 o'clock the case wns adjourned
until 10 O'clock Friday morning.
AN ATTEMPT AT A VERDICT.
At 8 O'Clock the jury in the Case c
England VS.. Forbes q Banks, came int
court and announced the following vel
dict; For the plaintiff, for the fu
amount of his claim; and, for the do
PENDANTS, for six cents.
Il was evident the jury did not exoctl
understand the case The chief justic
told them that the plaintiff, having r,
moved his goods by replevin, was entitle
to verdict of six cents only, while if th
Jury believed that the plaintiff, under hi
replevin, took away goods belonging
the defendents, the latter were entitled
a verdict for the full value of the goot
so taken. The Jury then retired again
have another wrestie with the perplexir
case.
At 8 O'Clock they sent note to tl
court, asking further instructions. A
answer was returned and in 10 minut
the Jury came in with verdict for Il
plaintiff for six cents and costs.
At the opening of court, at III o'clot
Friday morning the replevin case of
M. Dubois VS.. Forbes q Banks, was I
sumed. Francis M. Walker, Esq, testifi
that he went with Mr.. Dubois to demai
the goods shipped by the latter, and &C
roborated the testimony given by MID
bois in relation to the replevin procee
ings. Deputy Sheriff Joseph Martin al
testified that Mr.. Dubois demanded
goods and that they were surrender
under replevin. Mr.. Dubois WAS recall
and said the draft he got from Forbes
A. ..ssEa ata1