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and the defendant Rose with another and larger portion. As regards the alleged forgery of the letter "D" or the initials "S. H. D." or the name "Douglas" on the stubs or vouchers, indicating that moneys had been paid over by Rose to Douglas, the judge was of opinion that the evidence did not. justify the conclusion that the name and initials upon the stubs were otherwise than genuine, and all the stubs thus marked were left to stand as vouchers against Douglas. In other respects the conclusion of the circuit judge was favorable to Douglas, and his opinion, after reviewing in detail the evidence respecting the conduct of Rose when the delinquency was first discovered, concluded as follows: "On the whole, whatever doubt there would have been respecting the result, if the case were confined to evidence growing out of the books of account and the loose methods of accoun ing between Rose and Douglas, the subsequent talk and conduct of the former is every way so inconsistent with his present claim, except in respect to the questioned "D"s, and so confirmatory of the claim of Douglas respecting the stubless accounts and the red-lined stub accounts, that I cannot hesitate to say that the fair weight of evidence leads to the conclusion that stubless accounts were not paid over at the last or annual settlements, and that the red lines upon the stubs representing delinquent accounts, cannot be accepted as satisfactory evidence that the corresponding vouchers were turned over."

An interlocutory decree was thereupon entered referring the case to a commissioner to state the account with the following directions: First, that the delinquent deposit moneys, represented by stubs with initial letters or names, should be charged to Douglas; second, that delinquent accounts represented by red-lined stubs should be charged to Rose; third, that ledger accounts not represented by stubs or vouchers should be charged to Rose; fourth, that forfeited accounts represented by initialled stubs should be charged to Douglas, and subsequent payments on forfeited accounts, being practically stubless accounts, to Rose.

The accounting took place according to the directions of

the decree, and the result was that a decree was entered February 15, 1878, which adjudged that the defendant Douglas was liable for and should pay to complainants the sum of $1716 03, and the defendant Rose was liable for, and with his sureties should pay to complainants, the sum of $4647.55. It was also decreed that complainants should recover their costs of the defendants, but questions respecting them, and respecting costs between the defendants, were reserved.

From this decree defendant Douglas took an appeal. The complainants moved to dismiss on the ground that the case was not yet so far disposed of as to be appealable, and counsel for the appellant practically conceding the point, the appeal was dismissed.

On January 22d, 1878, defendant Douglas filed a cross-bill for an accounting between himself and the Regents in respect to other matters, and an issue was taken upon this and an accounting had. The matters embraced in this bill consisted in a balance shown to be due to Douglas in his last account rendered various errors which have been discovered in previous accounts, and interest on balances owing to him from time to time for moneys advanced. The Regents denied all liability to pay interest, and they claimed to offset against any amounts established in favor of Douglas all items of interest previously charged against them by Douglas in his accounts, and also a number of mistakes in his accounts which were in his favor. The accounting was had with the following result: The circuit judge credited Douglas with the amount of his final account and with such errors in other accounts as were thought to be established, and which operated against him, amounting in all to $2846.45. From this were deducted the amount of the previous decree, certain errors which had been discovered, which were in his favor, and the interest items previously allowed to him, making in all $2829.90, and leaving a balance due Douglas of $17.46, for which a decree was entered in his favor.

us.

It is by appeal from this decree that the case is now before

The appellant Douglas claims that certain portions of this decree are erroneous, viz.: In crediting the Regents and charging him with the amount of $1716.03 "deficit deposit moneys" as determined by the decree of February 16, 1878, and interest thereon; in charging him and crediting the Regents with certain so-called old accounts" amounting to $53.19 and interest thereon; in not allowing his claim for certain interest on certain advances made by him; and in disallowing his claim to be credited $390 for error in balance brought forward in his account rendered for 1870-1.

These questions I shall consider in the inverse order of the

above statement.

Although there was no appearance in this court, except on behalf of the appellant, yet his counsel voluntarily furnished the Court, on the hearing, with printed copies of the briefs and argument of the principal counsel for the complainant Regents, and of the defendant Rose, and also of the opinion of the circuit judge upon the merits; and the Court was also furnished with a manuscript brief of counsel for the Regents, to all of which due and careful consideration has been given.

Taking up these several questions raised by the appeal, the first in order will be the one last above stated.

First. Appellant claims to be credited the sum of $390 for error in balance brought forward in his account rendered for 1870-1. I have carefully examined the evidence and the briefs referred to, in order to ascertain if a mistake had been made as claimed. The report made by defendant Douglas to the Regents for 1869-70 showed a balance in his hands belonging to the University of $61.49. The two last items of credits to the University upon this report are under date of June 29, 1870, viz.: June 29th, sundry persons, $836.22, and diplomas $19. His next report to the Regents credits. the University, under date of July 1st, "By bal. $451.49." On turning to his book of accounts from which these reports were made I find the balance there stated under the same date $361.49; the other credit items correspond with his report. Turning back upon the same book to his account

for 1869 and up to June 29th, 1870, I find the total receipts footed up at $5685.87, and the expenditures at $5324.38; this makes the balance, as stated upon his books, $361.49. It is very clear, however, that a mistake was made in the footing-up of the receipts for 1869, as was pointed out during the argument by one of the members of the court. The correct footing-up is not $5685.87 but $5385.87, thus clearly showing a mistake of $300 to have been made in favor of the University. I have been unable to account for the difference between the amount or balance as shown upon his book and in his report. As already said, the book, as erroneously footed, showed a balance of $361.49, while his report gave the balance as $451.49; the mistake of $300 is clear, while there remains $90 unaccounted for. The evidence tends very strongly to show that this $90 was not received, yet the manner of keeping accounts was so loose and is so unsatisfactory that I am of opinion this $90 should be charged to the defendant Douglas. He having once reported the receipt thereof to the Regents, he must assume the burden of proving the mistake. This has been done to the amount of $300 and that amount should be credited to him.

Secondly. I now come to the question of interest. Defendant Douglas while director of the Laboratory, claiming to have made certain advances therefor, over and above the receipts therefrom in his hands, made monthly balances of his accounts and charged interest upon any balance found in his favor at the rate of ten per cent. per annum. In his annual accounts to the Regents the interest thus claimed and computed was charged. In some of the accounts this charge was more clearly and distinctly set forth than in others, it appearing in all as a charge of interest, but not in every instance showing how or upon what balance it was computed. The fact that such advances were made and that such balance in his favor in fact existed, is not disputed, except upon the theory of charging him with the entire receipts of the Laboratory. It was farther shown that there was no express authority given him by the Regents to make any advances, or if he did to charge interest thereon. These

accounts, when presented to the Board, were usually referred to the finance committee, by them examined, and reported back as being correct. There was no uniformity in the action taken by the Regents upon these reports; some were "accepted and the account and vouchers placed on file," others "accepted," "accepted and adopted," and " adopted." And this is true of all of the reports up to and including the report for 1871–2, except for the year 1866–7, which, although made and referred to the proper committee, the record of the Board fails to show any report made or action taken thereon. The report for that year is found on file, and formed the basis for the next year's report which was acted

upon.

It has been claimed that the Regents, in auditing and allowing his accounts, did so in ignorance of the facts relating to the charges of interest, and that the Board had no authority to borrow money or to pay interest upon such advances. I do not deem it necessary to pass upon the question of the power of the Board of Regents to borrow money or to pay interest. I have no doubt but that where money has been paid out or expended for the use and benefit of the University, in cases where the Board could have expressly authorized such expenditures, they may ratify the act and direct payment thereof with interest at any rate not exceeding ten per cent. per annum; and where the Board with full knowledge of the facts has made such payment, such action will be final and cannot afterwards be disturbed.

Did then the Board of Regents pass upon these accounts with full knowledge of the facts? Whether as a matter of fact each member of the Board carefully examined these. accounts for the purpose of ascertaining what was charged therein, and the reason therefor, is not of very much importance in the present inquiry. I shall not, therefore, consider the evidence tending to show such to have been the fact. In the presentation of these accounts, and the charges of interest therein, no fraud or concealment was attempted. The accounts upon their face showed certain interest items charged against the University. This was sufficient to put

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