The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1901-12-03

most of the company's methods of do
ing business and that 1t was Invariably
the custom to allow the agents TO re-
tain enough of their contingent COM
missions up to fifty per cent to pay ex-
penses. He stated that he had severed
his connection with the Ludden & Bates
Southern Music HOUSE in 1899, n that
his former associates, Mr.. w. Ludden
n Mr.. Jaspersen Smith had also re-
tired from the corporation, and thai the
three were now associated in a copart-
nership under the name of Ludden,
Bates & Smith. He testified that he
had known the defendant Smith several
years while he was in their employ and
that he had always for busi-
mes Sentrusted to him.
Messrs. Henry Miller and W. :. UZ-
zle, Of Raleigh, were witnesses for
the defence. They testified that they
had been agents for the Ludden & Bates
Southern Musi House a number Of
years and that the custom in dealing
with them was to allow them ID :e-
tain sufficient funds against the CON-
tingent commissions in order to carry
on the ous:neSs
The defendant. N. l. Smith, was the
last witness. He testified at some length.
but in the. main it was hat IN his
contract made with his brother that he
was to retain enough funds equal TO
fifty per cent OF contingent commissions
10 pay expenses. He stated that he had
rendered statements of all his transac-
tons to the company and that the
books showed that he owed the COM
pany S1010.45 and that they owed him
$2,2S6.74 in earned n contingent COM
missions, leaving a balance due him
81, 216. 20.
There was much more of the testi-
mony than that we have given but We
briefly give the facts as they appeared
from the testimony. The books and a
number of letters were put in evidence
or both sides. Couns had numerous
Tits over the admissability of evidence.
the counsel for the state fighting hard
against admitting certain evidence,
but almost invariably the court ruled
against them, allwing the defendant to
show by all admissible evidence that
he had no fraudulent or f%elonious in
tent to hold back funds belonging TO
the company. 1t was shown by the tes-
timony that not only did the defendant
hold back the funds because the COM
pany owed him contingent commissions,
hut it was also in evidence that the
present members of the Ludden &
Bates Southern Music House are now IN
litigation over the contracts for instru-
ments, both claiming the right to col
lect them. This was shown in order to
Justify the defendant in protecting
himself.
While the defendant Smith was on
the witness stand, Mr.. M~cClammy
sharply cross-examined him but in the
midst of it Judge Allen said he had
been convinced for some time that this
should be a civil action and not a GRIM
inal prosecution. There was nothing in
the evidence to show embeZZlement,
and that even in a civil action he would
not let it go to a jury but refer 1t to a
referee to find the facts. He said the
case had taken up much valuable time
and as there was nothing in the evil
dence to justify a further charge of en-
bezzlement, he felt that it was his duty
to the defendant to order the jury to
find a verdict of not guilty. In fact the
prosecution appeared frivolous if not
malicious and thereupon he stopped the
who'll proceedings by ordering that 4
verdict of not guilty be entered up and
that the defendant be discharged.
EX-Judge Bryan moved that the costs
be taxed against the Ludden & Bates
Southern Music House. and then fol-
lowed statements by the counsel for the
prosecution. Messrs. Marsden Bellamy
and Herbert McClammy Informed the
court thai there vas no malicious pros
ecution on their part, that they had
gone into the trial on a statement OF
the case that warranted the prescott
ton. Mr.. Grady also explained that as
the original counsel, he Instituted the
action in good faith. Judge Allen said
he did not criticise the lawyers but that
the prosecutors had failed to place all
the facts before them, and that they
were not responsible for the state OF
affairs. The attorneys for the prosecu-
ton made argument to show that the
Ludde & Bates Southern Music House
also brought the action in good faith
and that the costs should not be taxed
upon them.
Judge Allen said he could not see that
the action was brought for the public
good and ordered the clerk to make this
entry Upon the record:
ut appearing that notice having been
heretofore given hat a motion would
be made to make the Ludden & Bates
Southern Music House the prosecuting
witness in this case, it is adjudged by
the court that the prosecution is not for
the public interest and therefore that
the prosecutor pay the costs, including
the defendants witness tickets"
The court then took a recess till $50
o'clock this morning.
While the clerk was entering Judge
Aliens order in the records, Ex-Judge
Bryan made out a summons against the
Ludden & Bates Southern Music House
in an action for libel in which the de-
PENDANT Smith will sue for 500, 600 DAM
ages. 1t was the intention to serve the
summons on Mr.. Buckingham, the
treasurer of the Ludden & Bates South
ern Music House, but as he had left the
city it was served last night upon Mr..
W. w. Slaton, their agent in charge of
the music house in Wilmington.