The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1899-12-19

! one or all may be sued; and, if the evil
dence warrants it, you may find in favor
| of the plaintiff against W. r. Tucker, ad-
ministrator Of the estate of John A Do
ran, deceased, alone, or, you may find in
favor of the plaintiff against said Tucker,
! administrator of the estate of John A.
| Doran, deceased, and all of the other de-
PENDANTS appearing in this case, as here
! tofore instructed, or, against all of the
| bondsmen appearing in this case and not
against Tucker, administrator of the es-
! tate OF John A. Doran, deceased, or any
! one Of the bondsmen defending in this
! case or in favor Of all of said defend
ants, or any Of them, on trial before you.
STATUTE OF LIMITATIONS.
you are further instructed that if you
| find, by a preponderance OF the evidence,
that the defendants, or any Of them, ex-
ecuted said bond, as heretofore instructed,
the next question for you to determine Is,
was there a shortage in the treasurer's
office during the time of said bond, and
if So what, if any, existed at the an
nual settlement in October 1893, and
what if any, at the annual settlement in
October, 1894, and what, If any, at the
expiration Of his, Doran's, first term on
October 9, 1894, not accounted for by him,
or turned over to himself as treasurer
at the beginning of his said second term.
And upon this you are instructed, that If
you finI by a preponderance of the evil
dence, that at the annual settlement in
October, 1893, there was a shortage in
said Doran's accounts as treasurer, and
that at said time he had appropriated the
same to his own use, and that at the end
Of his term on October 9th, 1894, he did
not account for the same and turn the
same over to himself as treasurer for his
second term, then and in that event said
misrepresentation was dated from said Oc-
tober 1st, 1893, and as this suit was COM
menced on September list, 1897, the same
would be barred by the three years
statute Of limitations. unless said plain
tiff proves, Ivy a preponderance of the evil
dence, that the board Of county commits
sioners had no knowledge of said misap-
preparation until within two years prior
to the commencement of this action, as
hereinafter instructed.
"You are further instructed, that II you
find by a prepOnderance Of the evidence,
that on the first day of October, 1894, at
the annual settlement for that year,
there was a shortage in Doran's ac-
counts as treasurer, covering the term Of
the one year preceding said time, and at
the end of his first term, October Sth,
1894, he did not account for the same,
and turn the same over to himself as
treasurer for the second term, then and
in that event said misrepresentation would
III.
case was commenced on the first day of
September, 1897, the same would not be 1
barred by the three years statute of lini-
tation-
AS TO FRAUD.
''You are further instructed that the !
three years statute of limitations applies |
to this case; that is, that the statutes /
provided that in a case of this kind that |
an action must be commenced within /
three years after the right Of action ac-
crues, unless the right of action was con- /
cealed by fraud, in which event the &C
ton must be commenced within two years |
after the discovery Of the fraud. so that |
in this case, the question of limitations |
only applies TO the shortage of October |
1st, 1898, if any such shortage you find !
did exist
THINGS TO CONSIDER.
you are further instructed. that IN /
der the evidence introduced upon the trial |
Of this case, the statute of limitat tons /
heretofore called to your attention, can
only be taken into consideration by you
on behalf of the said defendants, in de-
termining whether or not any shortage,
If you find from the evidence there was
one existed on October 1st, 1898, IS barred
by the said statute. And, upon this you
are instructed, that the plea of the sta
tute Of limitations is just and valid de-
Tense; and If you should find that John
A. Dsran converted to his own use any
sums OF money as county treasurer
which belonged TO the public. and that
said conversion occurred more than three
years prior to the commencement Of this
action said action being commenced, as
heretofore instructed on September 1st
1897. then said plaintiff cannot recover
on account OF said conversion unless YOU
further ind that said DOran, By himself
or deputies conceale an act Of con-
version by fraudulent acts on his or their
part, committed for the purpose OF con-
cealing the same, and that the county
or their agents did not dis
cover the same until within two years
prior to the commencement Of this ac-
ton. or that by the exercise Of ordinary
care and diligence said board OF county
could have discovered the
same before said time. And, in determ-
lining the question as to whether the com
did, or could have discovered
the said shortage existing october ist.
lS93. If any such you find from the evi-
dence, by the exercise OF ordinary care
and diligence more than two years prior
&c the commencement OF this action, YOU
should take into consideration al the
facts bearing upon that question; the na-
!ure and character Of the documents and
funds that go 10 make Up the said short
age. the kind Of books kept by the treas
lrer and the mannet in which said books
were kept. as to whether o. not they
showed The true state OK the different ac-
counts. and whether there was a short
age. and If So whether or not the books
kept by the treasurer, either through mis-
take or design were by Doran. or his
deputies. made 10 appear that the ac-
counts were properly kept and showed the
true state o. affairs or funds belonging
10 the public and whether or not The
e5mmissioners or any OF them had suffi-
,,ent knowledge Of bookkeeping So that
any examination by any Of them q the
said books Of the treasurer would have
resulted IN disclosing a shortage, Il you
ind there was one, and whether or not
my person having any definite knowledge
f any shortage made any statements 10
my " IL commissioners ra-a-Lns u he !