22 ` rnnmmn amroarma.
Smith and Sherwood. Even admitting that he did not take an active- ‘
part in the business of the firm, still, the natural effect was to divert
( his attention somewhat from the business of his agency for Babbitt,
and it was a great mistake, to say the least, that, as the agent of
Babbitt, he made the firm of J. Willard Smith & Co. his financial
agents, depositing money with them, which apparently was mingled
with the money of the nrm, and drawing checks on their funds for
the payment of the expenses growing out of this agency. This, of
itself, was calculated to create suspicion on the part of the plaintiff,
but it does not affirmatively appear from the evidence that there was
anything fraudulent in this, either on the part of Dotten, or of Smith
or Sherwood; and it does not appear that the plaintiff was directly
a loser by this mode of transacting the business.
One of the diiliculties connected with this case is that many of the
witnesses testihed under the influence of strong feeling, and with a
bias which may be presumed to color more or less the character of
l their testimony. There is something in the manner in which Dotten
himself gives his evidence which is not entirely satisfactory. It may
be, however, the result of the exceptionally strong feeling he had in
the case. A quarrel had sprung up between him and one of the prin-
V cipal witnesses of the plaintiff, which may be presumed to affect, to
a greater or less extent, the testimony of the latter; and then there
was a criminal prosecution against Dotten, founded on the alleged
frauds set forth in the bill in this case, which was ultimately unsuc-
cessful, and which has undoubtedly aggravated the feelings of the
parties and witnesses, and is calculated to impair, more or less, the
effect of the statements made by many of them. The result of the ’
whole matter is that the allegations of fraud are not made out so
clearly as they should be in order to entitle the plaintiff to a decree.
Allegations of fraud should always be clearly proved, either directly
or necessarily, by circumstances which clearly lead the mind of the
court to the conclusion that a fraud has been perpetrated.
Growing out of the main controversy in this case there have been
presented several claims against the firm of J. Willard Smith & Co.,
viz.: Graham, Dorsett & Co.,} for $629.95; that of J. C. Scott & Co.,
$215.53; and the Sewing Machine Cabinet Company, $396.07. These
claims seem to be established as valid claims against the company;
` and as the receiver took possession of all the property of the company,
` and it has been sold, there seems to be no good reason why these
claims should not be paid out of the funds which came into the hands 5
_ of the receiver. ,