New-York tribune., 1895-11-01
THE WIMAN CASE ON APPEAL
AS TO THE DEFENDANTS 5
GUILT OR INNOCENCE.
AN ATTEMPT BY ASSISTANT DIsTRrcT-ATToRNEY
LINDSAY TO SHOW THAT MR.. wIMAN WAS
NOT PARTNER IN r. G. DUN CO..
AND THAT HE HAD no RIGHT TO
USE BULLINGERs NAME
GENERAL TRACY's oPPO-
SITE CONTENTION.

SITE CONTENTION.
Albany, Oct. 3l.-The case OF Erastus Wiman.
charged with forgery by his former partners In the
mercantile agency Of r. G. Dun & Co., came oeiore
the Court OF Appeals to-day. The Dstrict-Attorney
OF New-York appealed against the decision OF 'he
Supreme Court, which favorable to Mr. Wirnan'
following the certificate of doubt by Judge Barrett.
This decision reversed the Judgment Of conviction
under which Mr.. Wiman was by Judge lnsraham
year ago last summer sentenced to five and naif
years IN State prison. The District-Attorney was
represented by John ID. Lindsay and the respondent
by General Benjamin F. Tracy.
The contention before the court divided into
two sections: first. TO the guilt or innocence o'
Mr. wiman resting upon his right to sign and IN
dorse the check complained of; and second as 10
the error OF the trial Judge. that there might OF
might not be trial. The question OF guiit vi
innocence mainly to rest upon the ques'on
whether Mr.. Wiman or was not partner III
the firm of r. c. Dun Co.. and whether ne COIL
sidered himself such Assistant District-Attorhey
Lindsay after setting forth the case in general de-
tail. submitted the following:
There was question as to Mr. Wv man gn mirb 5
have changed the name OF the payee though the
legal effect Of his act In signing Mt; ~ y r.
pun sc co l1t funds s fsiHd and Il the % civil Of
parties, precisely the same as ne naa i1
It, or had originally made the check payable to ms
own order; yet the placing OF MI Buinsei IN IN
circumstances disclosed by the evidence, was diff
ferent thing In the eyes OF the criminal law
Mr.. Lindsay then proceeded to argue that Mr..
Wiman was not a partner in the firm of r. g. Dun
& Co. within the legal meaning of the term and he
quoted many authorities in support OF his position.
He further maintained that the articles OF associa-
ton clearly established the relation OF employer ana
employed. and AL the evidence clearly showed that
the business conducted in observance OF mat
relation Closing this branch OF the case Mr.. Lind
say said:
1t may be broadly assumed that the defendant,
either partner or an employe had genera!
& Co. and that the partners would be bound
thereby even though the signature was Ior q
that whatever other name the law might ,,ss assst l
to the act. IT would not amount TO the crime OF
the authority TO use in making checks. But the
authority was limited TO signing the name OF r. G
other name real or hctiticus. for the purpose OF
giving perncious or fraudulent vitality tq me
papers so signed In the business name or H. u
bun g. Co
General Tracy, in defence of his client took the
broad ground that he enormously convicted
Of the crime of forgery He maintained that the
errors iustifying this view First In the erro-
neous theory Of the law applicable 10 forgery. upon
which the case was tried and submitted 10 the
Jury: second In the erroneous rulings In the adms-
sion and rejection of evidence by the trial judge;
and third in the Judges charge TO the jury, ana
his refusal TO charge as requested. In form the
Indictment was for forgery, but the trial aoun-
dainty disclosed that the defendant was tried and
convicted not for forgery, but for overdra"ing
his account with r. G. Dun & Co. Among otner
arguments General Tracy submitted the following:
IL was conceded on the trial and is conceded
here that had Niman drawn the cheek IN ques-
ton payable TO his own order, with intent 10 40
precisely what he did, to-wt. transfer the iIhds OF
The hrn TO his account, there would nave
been no forgery. The two pivotal Facts upon W!ch
his guilt made to turn were that he used But
Iinger's name without Dun's knowledge, and that
his account oyerdrawn. Had his account hot
been overd avn at the time he would not nave
heeu convicted, and yet the record 0lscloseS tnat
he had with Dun's knowledge. constant over
draft with the firm for years
took this ground:
Wimau ana his associates, doing business under
the firm name OF X. q. Dur Co.. In the Onltec
copartner. In business not onl. as 70 other par
Ties but as between themselves by the terms
OF the copartnershir agreement IL Is recitei lnal
the members of the firm associate together ior the
10 recev. certain percentages OF the net profits as
their respective shares of the business ana IL u
expressly recited that the death or retirement or
either one OF the partners shall dissolve the as
sociatiou This Is entirely inconsistent with the
theory Of the hiring by Dun or the three associates
As to the us. OF Bullingers name. General Tracy
said.
Th re is no doubt, upon the uniisputed facts OF
this case. that BuEger'S name was used Dy
Winlan as tnat CT fictitious payee. and that the
Endorsement OF Bullingers name upon the checK
thus making II payable TO bearer, was not forgery
Tu, rule OF commercial law Whch permits the
drawee OF a check TO the name of a fictitious
payee and indorse the name Of such payee, thus
making 1t payable 10 bearer Is as old as the COM
mercial law itself.