The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1893-10-12
1T ENDS IN HARMONY
Judge Howe Withdraws His
Charges in Open Court.
Exceptions Overruled and the Iron Hall
Case Ends for the Present
Judge Winters's Views.

charges of conspiracy upon the part OF Re-
ceiver Failey and the officers of the Mer-
chants National Bank and the charge OF
undue influence used upon Judge Taylor.
The withdrawal of this last charge was
made particularly emphatic.
Judge Winters first gave expression to
his sentiments in the case from the bench,
yesterday morning. when, in answer to the
attorneys. he said:
''I think, perhaps If it is going to affect
the character Of your evidence, had better
will afterward look into the authorities
Mr. Pickens has touched the keynote of
my earnestness in this matter. l am ear
nest that this fund be made self-support
ing, and L ask TO be advised by you how
this thing be done from this day on.
The receiver now. reports in his custody,
subject to the order of the court, a fund
or upward of 500, co., II is great fund
and [ am earnest that fund be made self
out of it from time to time for expenses
snail not be scandalous nor bring odium
upon the court
Another keynote is this: That it be
found out at the earliest possible day
whose money this is and who is the right
1uI custodian of il, and, If that can be
found out, that ii be turned over to him or
them at the earliest possible day. To that
end, am glad 10 say, have the co-opera-
ton of all the attorneys, and we are work.
ing to bring the case to trial on the S5h
OF November. How long this fund is to be
IN the hands of the court we cannot say
now L am anxious to know the owner
ana TO give IL to him, and, pending that, to
make the fund self-supporting.
Last year. in August, a receiver was ap-
pointed to take and hold this fund under the
order and direction of the Marion Superior
court The authorities Judge Howe has
read this morning do not conflict with any
opinion OF mine upon the law applicable to
ene ADMINISTRATION or the interest arising
from the fund in the receivers hands
o,tI 90 not recollect now of any authority
cited this morning but which applied to a
permanent trustee. Mr.. Failey is not a
permanent trustee. He is a Temporary
trustee-a trustee for the night only sub
Ject to the order of the court on the NOR
row. lie is trustee to take and hold but
VINO does not control litigation. He cannot
know what turn il may take tomorrow
NOW then, suppose Mr. Failey had dug n
hole In the ground and put this money into
IL and covered 1t up and waited for the or
DER on the morrow. The order comes re-
curing him to turn the money into court
he goes and unearths the money, brings it
into court. For what is he chargeable? Has
ne been derelic?t Has he disobeyed any
oruer or the court? On the contrary, has
ne not done just what ne was told to do?
On the other hand. suppose three months
ago ne mad deposited this money in the In
dlanapous National Bank. and what has
happened had happened Would Mr. Failey
pc maple! IL is uncertain, very. Your
tuunds. IL recovered. would be recovered at
on the other hand. he deposits IL in the
Merchants' National Bank; this is coupled
a
director OF that bank
What is the effect of that law? He is
ordered to pay it into the court. and the
money, we will say is not forthcoming
What Is the effect? Has he not fastened
upon himself the mark OF liability? Has he
NOT put 1t into bank where he would be
OF the bank-its solvency or insolvency?
Is he not at the place where of all others
ne would be held liable? l do not think
there would be any lawsuit. / think the
very effect of what he has done would
fasten upon him liability. / referred to the
TACT that he was not trustee. but a tenn
porary trustee. and there is a distinction.
Every case, as Mr. Harris said must be de-
termined upon its own circumstances The
facts and CIRCUMSTANCES peculiar to the
case. Mr.. Failey was appointed a tenn
porary receiver. He could not know what
Tune the court would order him 10 pay the
money into court. He could not control
litigation. 1t was not his business to do so.
His business was to hold Ii against the or
der when it should come.
There are circumstances in this case,
this temporary trust, that must be taken
into account. Perhaps some of them are
outside the record or perhaps they are in
the record. 1t is true there never were
three months at any time when the court
the the receiver t or any LAWYER could tell what
was a railroading of the case through the
general term to the Supreme Court, and
every effort was made to speed the case
ana get decision and have the case tried
upon its merits. cannot understand now
how it is that Mr.. Failey, even though he
felt no legal obligation upon him, but the
pride of a business man, could have gone
and said to any bank. This fund VIII be
here sixty days, or three months or six
months and said Gentlemen, 1 want in
terest.' 1 don't see how he could have done
this under the circumstances of the last
year. Mr.. Failey is chargeable with inter-
est. such interest he received, and 50 far
you are to inquire into that to the fullest
extent: For that he is liable, and for that
he will be charged"
wv inlxa NTr nail
should be allowed to pocket what might be
his share Of the interest on the money, as
bank, and give no account Of Ii If such inter-
est had been collected, to which Judge
Winters replied that by so jeopardizing the
fund he was rightly chargeable with the
Receiver Failey was called to the stand.
and stated that he had received no other
in his report on the fund.
Otto y. Frenzel testified that the balance
on hand Oct 2 1Sss OF Iron Hall funds 7d in
SS7.5s -''''''' ' -A was $780,
John P. Frenzel testified that he had per-
sonally no Arrangement directly with Mr.
Failey as to what interest the bank would
pay on the Iron Hall funds. He had bad
no knowledge as to where the funds would
had been placed with his bank, and was out
of the city at the time the funds Were
Allan Fletcher said that, so far as he
knew. his bank had had no arrangement
with Mr.. Failey as to interest on the fund
deposited with his bank or the time for
which it was to remain, other than the
usual and per cent. rates which they
were still paying.
Cashier Kopp, of the Meridian National
Bank, stated that Mr.. Failey hod given
them notice, a few days previous to his
withdrawal of the funds in his bank. He
never paid Cashier Davis any interest on
the Iron Hall funds deposited with them.
The testimony of A. w. Wishard, the res
tdent assistant secretary OF the American
Surety COMPANY. whose business it is to
furnish bonds in court and other where
purpose of showing that Mr.. Failey should
be paid $500 for furnishing his bond He
testified that his company charged from
$500 to 5000 for the first year for fur
nishing q 100000 bond. and about one
half those amounts for each succeeding
year. He believed, he said, that a man who
could and would furnish bond for that
amount should be paid for so doing.
When the last witness had been examined
the court overruled the exceptions 10 the
report. declaring that there had been no
evidence presented to sustain the charges
made by Judge Howe; that the receiver
and his attorneys were highmnded, hon
orable and progressive citizens, all aiming
at the distribution of the great fund now
held by the trust; that the receiver had not
been paid enough in the allowance of Sl0,-
00o. but the court would not again retrench
upon the principal of the fund 10 pay any
body or anything; that all allowances in
the future must come from the earnings OF
the fund. He then stated that he was not
responsible for the existing status of the
case, and. while he could not help approx
/ ing orders already made, he proposed to
make the fund self-supporting from this