The San Francisco call., 1896-02-09
SHOULD It Be
JUDGE OR JURY?
y Which Is Supreme in a Civil
Case in the Superior
Court?
EUGENE DEUPREY's TEST
ObJectS to Judge Daingerfeld's
Radical Charge to the
Jury.
TWELVE MEN DO LIKEWISE.
Jurors Desire to Reverse the Verdict
They Gave Under His Honor's
Order.
TWELVE MEN DO LIKEWISE

Attorney Eugene n. Deuprey is making
an effort at this time to know whether the
judge or the jury is supreme in civil cases.
1t is in the recently decided case wherein
Asa Fisk obtained Judgment against John
Mallon, before Judge Daingerfield, fo1
some amount over $500 on promissory
note.
The decision was given on the 4th oi
this month, and since then the twelve
Jurors who passed on the case have decided
they were induced into error, or rather
they allowed themselves to be influenced
by the courts charge, into passing judg-
ment in the premises regardless of their
own conviction.
Attorney Deuprey, who has been made
acquainted with this state of affairs, has
secured an affidavit from the jury to be
used tomorrow in his appeal for new
trial. If Judge Daingerfield refuses to al
low the appeal, the affidavit will be pre-
sented on the same line to the Supreme
Court.
The case at issue is very peculiar. 1t is
more so than the cases usually brought up
by Asa Fisk, the well-known money-lender.
The affidavit reads that the charge made
TO the jurors by the court left them no al
tentative but to find a verdict for the
plaintiff without assessing an amount, or
else to fix the amount in favor of the
plaintiff at $500, which Fisk prayed for in
his complaint.
In the affidavit the jurors say they were
coerced by the court, and not permitted to
use their own discretion under penalty of
being held in contempt. In other words,
Judge Daingerheld assumed the high plane
OF judge and jury. To this the Jurors
demur IN their affidavit, and ask that John
Mallon be given new trial. or else that
the verdict given on February 4 be con-
strued as reversed and in favor of the de-
fendant.
NJ. NJ. Estee and Arthur Fisk, a rela-
tive of the monev-Iender, are the attorneys
on the Fisk end of the case, and they will
be served with the notice of application for
the new trial. 1t is brief, with the excep-
tlon of the jurors affidavit, but the history
behind it is full of interest.
Some thirteen years ago John Mallon,
who Is now partner Of Harbor Commis-
sioner Chad dbourne, accommodated his
friend, John Hill, real estate man, by
Ind4rsing his note for $3.50. Hill claimed
II Was but q temporary accommodation, as
theNnote would be transferred to a friend
of his and would be taken up in few days.
Instead of that Hill discounted the note
for $500 with Asa Fisk and allowed it to
remain with him on that gentleman's S cum
ulative plan of interest.
At different times, hoping to> help Hill
out of his financial incubus, Ma1Ion paid
pecting that Hill would settle the note
held by Fisk. But in 1886 Fisk, who has
been an acquaintance of Mallon's since the
pioneer days, sent his secretary, Mr. Lang,
to tell Mallon that there was one sure
way in which both could get all that was
due them from Hill. All Mallon need do
was to sign the note, or rather renew it so
as to make 1t valid, as it was nearly out
lawed, and Fisk had an inkling where
they could levy on some of Hill's prop
erty.
MalIon signed the note Fisk had told
him privately he would never be held re-
sponsible for the Endorsement, and he felt
not only secure in not having to pay the
principal, but he saw his way clear to get
back the amount he had paid out in in
terett.
But, according to Mr.. Mallon's state
ment IN court, he only signed a note for
$3.50, which, when Fisk brought the suit,
was produced as a note for $4,000. With
interest added, the indebtedness figured
up to $3.50.
The details of the loan by Fisk. NAL
Ions Endorsement OF the note, the interest
he had paid in behalf of Hill and the busl-
ness hardships he had undergone through
his act of kindness, were all explained To
the jury in Judge Daingerfield's court, and
the affidavit these twelve honest men and
true" have placed at the disposal of At
torney Eugene n. Deuprey in his fight for
a new trial states:
1--WE desire to reverse the decision we
were compelled to give for plaintiff, under
instructions from the court"
There is another phase of the court pro-
ceedlngs which IS commented upon by the
attorneys who have had dealings with the
case.
1t seems that as soon as Asa Fisk
brought suit against John Mallon for
$3.50 the people with whom he had had
business relationship for years, and who
were always pleased to extend him credit
for unlimited time, shut down on him and
likewise brought suit. Whittier Fuller
and A. II. Winn, two firms dealing in
plate glass, sued for $4,000 each.
The German and the French Bank each
sued for outstanding accounts and the
local banks refused to longer accept Nal.
Ions paper. Mallon felt himself injured
and in a cross-com plant before Judge
Trout be asked for $4,000 damages, OF
rather he claimed be WAS entitled TO that
much money as damages to his business
character. Judge Trout sustained the
cross-Uonplaint but when IL came before
Judge Daingerfield IN the trial OF the case
it was not admitted in evidence.
Taking this and other things into con-
sideration the twelve jurors who gave a
verdict for Fisk now want TO have their
dictum reversed. The names OF these
gentlemen are: Simon Furth, L. II. Hor-
ton, S. Fisher, William Mocker, Platt
Conklin, Joseph n. Nounan, albert Fol-
som, Simon Klindt, Lawrence w. Coe, o.
P. James. Peter Ringen and j. A. Elmer
son.
The Park Programme.