The daily journal. (Salem, Or.) 1899-1903, 1903-04-01
DAVIS
DEFAULT
REVIVED
BY Petition for Rehearing
Being Filed
Crawford Says States Claim
Is Not 0utlawed


of George W. Davis. the defaulting
clerk Of the state land board. Mr..
Crawford raises several questions not
presented in the briefs in the case
when II was tried by his predecessor,
Attorney General Blackburn. the prin'
ciple contention being that under the
language of the stipulation Of facts,
1t is not agreed that the defalcation
took place prior TO January 1. 1896.
and as the suit was commenced more
than six years later than that, the
courts held that the states claim was
outlawed. II was generally understood
that the stipulation into which Attor'
ney-General Blackburn entered ex'
pressly agreed that the conversion oc- !
but Acknowledgement Crawford does
not view II in that light lie says in !
his petition for rehearing:
"An the stipulation shows is, that |
up to and including the 31st day of
December 1894, Davis had collected
s353. .927.43, and had state trcasurer's
receipt for the same period OF only
1922. .945.45. leaving an apparent bal
ance OF S3O.9s1.9s in his hands, which
he did not pay over until after the
first day OF January. 1895.
1T is entirely consistent with the
facts stipulated that Davis received
all OF this balance on the 3lst day OF
December 1894. and paid II over TO
the state treasurer the 2d day OF Jan
uary. 1895. At least there is nothing
In the facts stipulated that warrants
any conclusion of law to tho contrary.
Therefore II seems clear that unless
the mere facts OF the receipt OF this
balance on the 3lst day OF December.
1894. and failure to pay II over until
the I'd day OF January 1895, AFFORD a
conclusive inference that such pay
ment was not made within a reason
able time regardless OF any other cir.
cumstAnces or conditions. actual or
possible. the court cannot so conclude
as matter OF law and determine that
Davis did not make Immediate pay
ment" thereof, and thereby commit
ted a breach OF that obligation Of his
bond. Also. II is obvious that any
conclusive inference OF an actual con
version from the same facts would
be even more dlficult 10 sustain.
Davis could not pay the money
over on the intervening FIRST day OF
January. 1895. as that was a lega
holiday and the ordinary methods Of
collecting and paying over money h
large amounts through drafts anc
checks on banks. OF which the cour
must take judicial notice furnishes
X ready explanation OF the only delay
a in payment which the court can sa!
'e- as a matter Of law occurred In thii
he case. and is OF itself sufficient 4
I'M preclude any legal conclusion that h'
In payment was not made within a rea
as sonable time"
TO In support OF his contention tina
the defalcation occurred after Janu
airy 1. 1895. Mr. Crawford cites the re
port OF the legislative investigatinI
=, committee which says that the book
' OF the ofice were correct and all mon
=" eys accounted for on February %
- 1895. This report has been claimed a
settlement between the state an
Davis and his bondsmen mp 10 tha
~ time. but Mr. Crawford chooses q
view Il as evidence that all money ha
been accounted for up 10 that time, an
that the shortage occurred later !
benig agreed that nearly $4,000 wa
converted by Davis, and there bein
evidence that II was taken after Fel
~ ruary 20. 1895 the reasonable infer
ence Is that the actual defalcaton %
- cured on July 81. 1895. at which tim
~ Davis term OF Office ended and a
~ which time he should have accounts
=" for all moneys received by him 10
the state There was also a supula
tion that Davis collected s6O62l4
after January /. 1895. and paid Tx
,lie sum into the state treasury. MI
hat Crawford contends that II Is no
iisSas agreed and is not a necessary infel
- ence thaL lhe money pdiu ait'i va"
ess date was the same money collected
ses me The money paid. he asserts. may hay
For been money collected prior TO Januar
lst.
Numerous authorities are quoted .
IN sustain the contention that wher
,,a there Is no proof showing the time O
~. misappropriatiOn. the prcsumptio
m must be that Il occurred at the end o
the term. The attornev-general ais
argues in his petition that even II
- be established that the defalcatlon di
occur prior 10 January !. 1888, th
fraudulent concealment Of the cor
n version should prevent the running Q
lthe statute of limitation until sue