Omaha daily bee., 1895-05-03
NAY THE MOSHER BOND co IN
Important Question Raised by the Defense
in the Hill Case.
HOPE OF That SIDE HINGES UPoN II
II tho Bond Creating the Capital National
astato Depository is Admitted, uiirs
Counsel Claim the Case Is
Ended There.

eN-State Treasurer Hin and his bonlsmen,
and at the afternoon session the defense at
tempted to introduce as evidence the $780,
600 bond Of the Capital National bank, given
when II was made state depository This
was resisted by Judge Wakeley for the state
The defense, by Attorney John IL. Ames.
claimed there was no decision in any case
similar TO this where a state treasurer has
been held liable for placing money in bank.
Judge Wakeley urged that there was a prece-
dent in Cedar county in this state, in which
Ju Sc Savage had held that county treas
urer had right to receive certificates Of de-
posit from his predecessor, but that this very
supreme court had reversed that holding.
The argument on this point will be con-
cluied tomorrow by Attorney Ames.
Deputy State Treasurer G. NJ. Bartlett and
his big book resumed the witness stand at the
opening Of court He was asked by MIR.
Lambertson il he had a record of certificates
of deposit for $4,000 issued November IS,
1891. Witness replied that he had not, On
January 6, 1898, the balance to the states
credit in the Capital National bank was 1885,
1915. This was drawn out in two certia-
Gates of deposit, one for $l5O,OOO and one for
SS5,357S5, and both had been turned over
to BARLEY in settlement between him and the
outgoing state treasurer Hill
MIR, HILL GOT LITTLE CASH.
Cross-eNamined by Wheedon witness said
that when Hill had assumed the office of state
treasurer the outgoing official, Willard. had
turned over to him two certificates Of de-
posit for 900 each in the Capital National
bank. Hill had first gone into the office Jan
uary 8, 1889. Had received only $523.21 in
cash from Willard at the time. All the rest
had been in checks, drafts and certificates OF
deposits. Not over 2 per cent Of the re-
cepts of the office had been in cash. Had
been connected with the state treasury twen-
ty-four years. Had been state treasurer four
years during that time. When Hill had sue
ceede1 himself in 1891 he had received cer-
tfcates Of deposit from himself.
On redirect it was developed that on jan
uary Z, 1889, the two $4,000 certificates of
deposit were 'swapped" for one 100000 GER
| tfcate, and this was retained in the office OF
! the state treasurer for nearly n year
Receiver Hayden of the Capital National
| bank was recalled and said, in explaining
| insolvency, that he had never known of a
| bank that would have been able TO pay all
| its indebtedness in one day. This was drawn
! out by Wheedon's cross-eXamination. Hay
| den had testified yesterday that the bank
mad been insolvent for quite while prior
| to the settlement between Hill and BARLEY.
| This information was objected to by Mr..
| Lambertson and sustained Mr.. Wheeion
| then tried to ascertain il witness had loaned
the Capital National $4,000, but was ruled
| out.
CAPITAL NATIONAL ASSETS.
| Mr.. Wheedon went into the question OF
| the actual assets of the bank at the time of
| the collapse and gained the Information that
| in round numbers they were 100000. The
attorney wanted to know of what these assets
| consisted. Witness replied In real estate and
| bills receivable. Had placed the real estate
| at S60.COO, but 1t was worth now $50 900. MIR.
| Wheedon attempted to show that the real
| assets, including Outcalt's securities turned
over, were s222,79O, and witness admitted
that ii might be possible to realize that sum
in good times, but he had been dealing in
| actualities and not possibilities.
| Then Mr.. LambertsOn asked witness how
much he'd been paid in dividends, but de-
| Tense objected and was sustained
'Mr Hayden" inquired Mr.. Lambertson,
! when you speak Of what may be realized
| from the assets of the bank as $500, 900, how
much do you include as stock assessments?"
| About S1S5 ,O0O."
isn't $3.50 large estimate for the
| balance of assets?"
| II think not"
| 'What amount of paper was outstanding
at the time of the failure"
"The sum was 1893 1853. S6."
| The defense then went into a close exam
ination Of witness, the point attempted to be
| shown being that the Capital National bank
at the time Of its failure was In much bet
ter condition than had been represented but
the replies of witness were unsatisfactory.
Judge Wakeley offered certified copies OF
| financial statements of the states finances
Tor January 8, 1891, January 5, 1898,
and February 2, 1891. Defense OBJ
jeoted to the introduction of these
documents and was overrued. Judge Wake
| ley then stated that the state rested its case,
| with the privilege Of reconsideration Of GER
tain matters If it was thought advisable. Be-
| fore proceeding with the defense the court
| took a recess.
At the opening of the afternoon session
State Auditor Moore was recalled and iden-
| titled the bond given by the Capital Ma
tional bank and filed in his office January
l6, 1893, including the signatures of c. w.
MOsher, as president and II. G. Outcalt. as
| cashier of the bank Asked what time OF
the day the bond was brought to the audit
| ors office, and by whom. witness stated that
MIR. Mosher had brought it in person, and
according to his memory, about 10 o'clock
| in the morning.
Judge Wakeey objected TO the Introduction
! of the bond into evidence. He had under
stood the courts ruling, already made, to be
that the question of the bank having been
made state depository did not at this stage
| Of the case cut any figure The court re-
| served its ruling until the argument should
| be heard, but after some parleying on either
| side It was decided to listen to the aTgu-
ment forthwith.
RESPONSIBILITY OF A TREASURER.
Judge Wakeley began his argument with
| the statement that the states cause of ac-
| tion was as complete on January g. 1893, as
1t is today, or was when this trial began.
Continuing, the judge declared, with consid-
| cradle emphasis that 1t was an established
rule, and had been so held by this very
| court, that when a treasurer having in GUS
| tody state funds removes from the treasury
| where they belong such funds he has under
| the law and the ruling Of the supreme court
| converted those funds to his own use. This,
he claimed, was illustrated in the case OF
the state against the treasurer OF Cedar
| county Nebraska. In that case Judge Saw
age was holding court in Cedar county. when
a case similar in every respect to the one
| at bar came up for trial. He held that the
agreement made between the treasurer of
Cedar county and his successor, to accept
a certificate of deposit on a solvent Sioux
City bank. ip lieu of the actual cash, was
good. That decision was reversed by this
court, and the opinion still stands OF record.
The same position was taken by this court
In the case of the state against Hill, where
he was found to have converted state funds
to his own use by placing them on deposit
in certain Omaha banks. The first breach OF
the state treasureT's bond Is In this case.
alleged TO be the wrongful conversion OF
1896 900. Tue second breach alleges that he
failed TO pay over in cash to his successor
the fall amount OF the states funds en-
trusted to him. The opinion cited above in
l.N.