Chicago Daily Tribune Newspaper, February 14, 1874, Page 2

e 2 THE CHICAGO DAILY TRIBUNE: SATURDAY, FEBRUARY 14, 1874. D. A. GAGE. Judge Rogers’ Decision on the Indict- ments. The One for Perjury Is . Quashed on Two Grounds. That for Failisg to Tarn Over Moneys Is Sustained The Court Holds the State Law Applies to City Treasurers. And It Was Not Repealed By the City Charter. Judge Rogers Declines to Give an Opin- ion on the Last Indictment. Reed Wants the ~Trial Set for Monday Week. Mr. But Mr. Gage’s Counsel Plead Prior Engagements. ThuyAWfll Arrive at a Conclusion Mon- day Morning. The Criminal Court-room was crowded yester- day morning, tho atiraction being the cpinion of Judge Rogers on the motion to quash the indict- ments in the Gago case. The defendant was present with his counsel, and occupied a seat in the spaco allotted for attorneys. Shortly after the court was opened, Judge Rogers said he was prepared to dispose of the motion, and proceed- ed to read the following opinion : e INDICTMENT FOR PERJURY. B A motion to quesh this indictment was made by defondant's sttarneys and submitted to the Conrt several days ego, after fuli argument, in which quite s range was taken, snd- seversl reasons assigned in its support. Provisions of the City Chorter and proceedings of the City Oouncil were read which, I think, have no refer- ence to tho question before the Court, and which, ‘a8 matters of fact, I cannot comsider. ‘The Court mustlook to the charges contained in tbe indictment, and, 0 far zs woll-pleaded and sufficiently set forth, they are to ba taken as true in considering this motion. But the month- 1y report of Dec. 1, 1378, to which is attached tho oath of Gage, upon which, it is conceded, this indictment for perjury is frawed, and upon which it rests, was presénted upon the argument, aud can be legitimately considered. THE NOVEMBER DEPORT. The indictment refers to this report and affidavit, and assigns perjury upon it. It is aleo brought 10 the attention of the Court by afidavit, snd by the admission of tho State's Attorney, snd (hus, in fect, becomes a part of tho record. Although in some. scuzo extriusic matter, it can be considered by the Court in connection with the indictment ‘* as coostituting the basis of o tuotion to quath ™ : 1 Biehop, Criminal Fractice, 763 ; State v. Wall, 15 Mo., 208 ; State v. ne, 63 N. C., 595, and other authorities y Bishop 2nd by counsel ou the argument ! tiis motion. 1fIlooked to theindictmentalone, Iwould have wo difiicalty in deciding that it is good. Dut, when considered with the account rendered and atlidavit Aled with i, it is €0 doubtful (to say the least of it) whether it can be sustained upon & iria}, or after & verdict, that I feel that it is due totho accused, and to tie State, that it should be quushed, for two of the causes insisted upon by the counsel for the dufense. TIAE OF TAKING TIE OATH. 1t is not necessary that I shonld ssy more in reference to other objections then thatIam sutistied they are not well taken. The require- mens of Sec. 15 of the Charter is, that the Tressurer * shall, at the end of each and every :onth, end oftentr, if required, render an ac- count to the Comptroller under oath.” Tho fact is that tho account for November, 1673, was dated and filed with the Comptroller on_tho 1st aay of December, 1878, while the, afidavit at~ tached Lias & jurat dated the Gth day of Decom= ber, 1873. 1 do uot sappose that it is absolutely pecessary that the Treasurer should render bis account under osch tue very lsst dsy of the movih, for that would, in some cases, be legally imprncur.nb\uana when that day occurs on Sun~ day. 1twould be s substantial compliance with the requirement of the Charter for him to make and file bis monthly sccount on oath on the 1st, or sahout the 1st, of the succeeding month, . and if he should swesr falsely to any one material item thercof he would be of perjury. But, in case wo are joring, it appears that ho rendered tho account, and that it was received and filed, on tlie 18t day of the month, withont makiog oath to it, and several days thereaiter, when by the law Le was nof required to do ii, he made the oath. There is no regirement that he should make an oails to 20 necount after he bad in fact been per- mitied by the ofiicer to whom il was to be * rendered to make and file it without ocath. Itis 1he falso swearing to tue account rendered, axd when rendered, that comstitutes perjury. It may bo that tho account, although placed in tho Lands of the Comptrolier, was not in fact accept- od_by him as 2 legal rendering of the account, and that ho required the accused, on the Gth of December, to rénder the account under oath. If o, then, if fzalsc, perjury msy be assigned upon it for the sectionof the Chartor reforred to autborizes the Comptroller to reguire acconnts uuder oath st any tme he may deem it proper. Sut this indictment does not aver such fact, and, 58 such averment is material, the indictment is ‘bad for want of it. ENOWLLDGE AND BELIEF. Again, tho Charter ouly requires the Treasurer to deciare in his oath thav the statewent is true £0 far as he knows or has reason to believe, apd the afiidevit on which perjury is sssigued in this casa containg that averment, but the indict- ment does not pegative euch belief. *‘ Where the defendant only siates Lis belief, it is neces- sary to aver that he did not so believe—that ha Xnow the contrary.” Bisliop's Crimins) Practice, Sec. 923; 3 Wharton’s Criminal Practice, Sec. 3,961 ; State v. Les, 3 Ala., 602 ’ TTo illustrate the principle, Bishop ssys: "*¢ It tho testimony was tuat the dofendant, who was 8 witnesy, believed that another person had com- Thitted & larceny, it is not sufficient to negative merely the fact of the larceny, but the bolief of the fact must be negatived also.” So here Gage swore that, **5o far 88 he had rea- £on to believe,” the accouut was just and true. It is true that he alzo swore, s0 far a8 he knew, ihe Ianguage being “£0 far &s I know or Lave resson to believe.” It may be plansibly con- tended, therefore, that he sworo upon knowl- edge, and that the facts stated were pecaliarly within his own knowledge and upon their face appeared to be exclusirely so, This may all be so; still it remaing that the onth was alterpative—ss if it had been, to my Lnowledge or belief ; and, in view of the author- jties cited, I am eatisiied the indictment shomid have negatived that belief. Tho mwotion to quash the indictment is sus- tained. OTHER OBJECTIONS. Tho Court—I considerd e other questions raised, gentlemen, and came to my conclusion about them; but I thought, as I had concluded that. for two reasous at lest, it was necessary 10 quash the indictmont (and it was, in my view, absolutely required), I did not deem it necessary to go into 2 discussion of the other guestions. I have said, however, in_the brief opinion that 1 resd, simply that I did not believe that the other objections were well taken. Iam eatisfied in my own mind upon these points, as well as ‘upon the other two. 5 et FAILURE TO PAY OVER. The Judge then read the following opinion on the other indictment, which is for failing to pay ‘over money to his enocessor in office a8 Treas- urer of the City of Chicago: This'indictment against Dayid A, Gagecharges that he, on the 15th of December, 1873, was, and during the term of three years and more prior thereto bad been, the Tressurer of flxg City of Chicago; that, as such, he had been intrusted by law to receive, safely kecp, aud disburse large sums of money, did so receive the sum of £507,703.58 ; that eaid sum was afund estab- lished by Iaw for public purposes, and that he did not aisburse seid sum of money ; that, on the 6th day of December, 1873, his term of oflice as_Treasurer expired; that on that day Daniel O'Hara becamo, was, and has since been, the | Treasurer of ~eud cits, 28 the lawful successor of said Gago as such Treasur- er; that the sum' of money aforesaid wag and still is owned and is the properiy of the City of Chicago, as a portion of its revenue; that, on the 5th day of Januaiy, 1874, sai O'Hars, s such Trensurer, and a8 guccessor of sgid Gage, demanded of and from him payment of said sum of money, ho, tho eaid Gage, being then and thero required by law to pay over the same £o his successor in office; and that eaid Gage did then and there unlawfully fail to pay over and deliver to snid O’Hara, as such Treas- urer, said sam of §507,703.53, contrary fo tho statute, ote. THE LAW. This indictment is founded upon Sec. 16, Chapter 30, Division 7, of the Criminal Code, which is a3 foilows: 1f any officer or person who nowis, or Liezeafter may ‘be, created by faw 10 collect, disbursc, rocolve or safely Leep any maoney or moneys, ToYeLue Or revanucs, be- longing to this State, to the sclioal-fund of tlis State, fo the school-fund of any county or township, 1o any county in this State, to any canal, turnpike, or xail- road-furd of this State, or any county thereof, or to the President and Directors of the State Bauk, or to Aoy fund for the improvement of any publle road, river, creek, or other wWuter-course bordering on or Swithin this State, or 1o any other fund now beiug, or liereafter to bo catablished by law for public purposcs, snd sho shall fail or Tofase to psy over all moneys, warrants, bills, notes, and orders which any such ofti- cor or persons ghould reccive for disbursement, and hrs not disbursed, or sball collect, or shall re- celve, or shall receive for safe-keeping, belong- ing to this State, to avy couniy of this State, or ip zny such fund s aforesiid, whea such oificer or pergon shall be thereafter required by law, £nd demand duly made by the successor or successors of such ofiicer o person 1n oflice, or by tha oficer or person to whom such moneys, Warrants, bills, notes, o= orders ought by law to bo' paid over, or his or their attorney or agent, duly eutliorired, in writing, signod and ncknowledged, if such demand be practicas ble,—overy such officer ar person shall, on conviction thereof, bd punished by confinement in the Penitm~ tiary for any term not Jess than oue (1) year, nor more that (10) years, Procided, that no person shall be commitied to the Pepitentiary under this section, uniess the money not paid ovet shall amount to §100, if 1t appenr that such failure or refusal shall be ve- castoned by unaverdable loss ot accident., Every per- son convicted under the provisions of this secdon sball forever thereafter be ineligible and_disquelificd from holding any office of houur or Profit in tuls Sute, The defendaut, by his attorneys, mada & mo- tion to quash the indictment, which was argued and submitted to the Court on the 30th of Jan- nary, 1874, In copsidering the motion, I will take up the objections in the inverse order of their presen- tetion upon the axrgument. FAILULE TO_ALLZGE CROMINAL INTENT. 1. Tt is insisted the indictment is defective be- cause it does ot allege o criminal intont: So far a8 this point ia involved, the language of the in- dictment is, that the dofendant unlawfully failed 1o pay over and deliver to bis successor in ofiice thé sum of money therein stated. The common law required all offensea above misdemeanors to have been done feloniously, with & criminal in- tent; and that this intent should be charged in indictments for such crimes. For acts made criminal by statate, all that is essential to & clear statement of tae offense, 8o that it m:\g bo ezsily understood, is still, no doubt, required; but by the statute of this State the technicsl terms used at common law bave been dispensed with : Every indictment or accusation of the Grand Jury sliall Le decmed sufficiently technical aad correct which states the offensc in the terms and language of this code, or 50 plainly thut the notare of the offenso may be essily understood by the jury. [1 Gross' Stat- uter, Sec. 1 of Division 15, pago 199.] POIST OVERRULED. The offenso charged against the defendant in this cnse was created by statute (assuming thet thie statute on which the charge is based applies to him 2nd is in force); and that offense i8 the failure or refusal “to pay over moneys to his successor in office ™ which it is alleged he had Toccived as Tressurer of the Ci‘tiy of Chicago, snd which was “ a fund established by law for public purposes.” Thecharge in the indictment 18 in the language of the siatute, 2nd it is made with a5 mach precision and certainty as the stat- ute requires. It advises the defendant in clear and npmistakable language of the specific charzo againes him, and 5o plainly “that the naturo of the offenss may be easily understood by the Jjury,” and in such terms as will enable him *to Plead o previous convietion or acquittsl if he shvuld be again arraigued for the same offense.” Thoe Supreme Court of this State has, in & num- ber of cases, held the indictments good where no criminal or felonious intent was charged in the commiasion of acte which were not felonies at common law, but were made 86 by statutes of this State : Miller v. The Pcople, 3 Scammon, 235; Quigley v. The Pecple, § Scammon, 01 ¢ Connolly v. The People, 4 Scammon, 476 ; Ellisv. The People, 4 Scammon 498; Mobler 'v. The People, 24 Lllinois 26 ; Morton v. The People, 47 llinois 274. Tho authorities referred to by the learned council for the defendant, viz; 1 Wharton, C. L., Scc. 237; 1 Rishop, C. L., Becs. 182, 270, 429 ; Commonwealth v. Stout, 7 Ben Mouroe 247, holding that * Where the criminal intent is wanting, the accused commits no of- fense in law, thotgh Lie comes completely with- in all the words of a statute which prohibits the 5cts, being entirely silent concerning the in- tent,” do not sustain the position that this in- dictment is bad, for the reason that it does not alloge thst iotent; for the statute in this Stato (as shown by its own terms, and 3s construed by the Supreme Court) expressly dispenses with the necossity of such averment, ood requires enly that the of- fenge should be stated in the terms andlsnguage of the code, When overy fact necessary to con- stitute the offense is necesearily “implied by fol- lowing the language of the statute, then tho in- ment in that languagoe is undoubtedly sufi- cient, and was o held by the Court of Appesls in Kentucky, in 7 Ben Munroo, suprs, reforred to by defendant's counzel. But it is insisted that thero is & distinction between an act which, 1 its common or legal usage, implies & criminal intention, and one that {s in 1tself innocent ; that, in tho one, all that is required is &a averment of the commission of the act in the language of the statute, and in the other, such additional sverments as in connec- tion with the act meke upon the faceof the in- dictment a crime. This is snswered by the statoment that the statute itself mekes the specific act charged against the defendant illegal sand felonious, snd it is_one which cannot be committed without the kuowledgo and bad_ in- tent of the person guilty of it. In law and in legal nssge, thorefore, it implies s criminal in- teation. ‘ Where o statement of tho act itself necessarily includes & knowledge of the illegality of the act, no averment of knowledge or bad in- tent is necessary.” 1 Wharton's C. L., Sec. 297 —~an nuthority cited by one of the defendant's attorneys. BECENT DECISIONS. This question Las Yory recently again been settled and put beyond all doubt by two de- cisiona of the Supromo Court of ihis State, which have not yet beea reported except in the newspapers: In 3r. Cutchen v. The People, which as an indictment for eelling intoxicating liguors to & minor without & written order from Lis parents, guardian, or '“‘UK; ‘poyeician ; and in Mapes v. The People, which was indict- ment for selling intoxicating liquors to & person in the habit of getting intoxicated; in which cages it is beld that it was not necessary to aver in the indictments a scienter,—that it was suffi~ cient to make the chargo ec plainly that the patty accuzed may know how to make his defense, and the jury may readily understand the nature of the accusation. Inthoec cases tho indictment charged the sctsin the languago of the statute, and they wero acts which were not erimes or_misdemeanors at common law, and were mot in the abscnce of the statnto even il- legal, certainly not implying in their commission a criminal intent. DOES THL LAW COVER TEE CITY TREASURER? 2. 1tis alleged a8 the second cause for quash- ing the indictment that the law on which it is founded does not include the caso of the de- ferdsnt. It is true that it is not included in that section of the criminal code by rpecific enumeration. The defendant was not ‘an officer or person intrusted by law to collect money be- longing to & State, to the school fund of tho State, or of any county or townsbip, to a county, canal or roilroad, or President of the State Bm{, —the Collectors of each fund being the specific enumeration of the law. But can it be znid that be, as the Trensurer of thoe City of Chicago, was not an officer or person intrusted to collect other funds establishea by law for public pur- ees? The presumption is not, as contended E;lhu 1em-nm¥ counusel, that the legislative in- tention stopped wita the specific enumeration, That presumption czrinot be ellowed or indulged, when the Legislatare follow the speciiic enumer- ation by general Ianguage, which includes any oflicer intrusted by law to collect **any other fund now boing or hereafter established by law for publio purgosea.” 1t may bo, ts meisted, that when the law was first eniacted in 1833, the City of Chicago had no charter, and that no city within the limits of the State had been then organized. . That fact, if it is one, domonstrates | the wisdomof tho Legslature rather than ** guilt of gross superfluity,” after a specific enumern~ tion of officers then iutrusted to coliect funds of State, county, township, etc., to use general language that would include officers of villages 'laml cities that might thereafter be organized by aw. THE LAW RE-ENACTED. . This law, bowever, shough first enacted in 1833, was ré-onacted ds s part of the Criminal code, 2nd approved on the 34 of March, 1845 when thete were cities -having Trensurers an other officers intrusted to_collect public funds. The defendant, as charged in the indictment, +was the Treasurer of the city, intrusted by law 1o collect and receive money which constituted a fund established by law for public prrposes. Bat it is insisted that there was no fund estsb- lished by law for public purposes that was or could properly bo in the City Treasury. The Jaw established the City Government, which is a public corporation, and authorized it to raise fonds for varions purposes—many, if_not atl, of which were for public purposes. The case of Lloyd v. The Mayor of New York, 1 Seldon, 874, referred to and relied upon by defendant’s coun- sel, sustains the position that a city corporation poseesses governmental and public powers, as ivell s private; and to the extent thatthe former powers are held and exercised, the corporation is clothed With sovereigpty, which 18 given and wueed for public purposes, and whilo in the exercise of such Gov- ernmental powers it is a mavicipal government, Tho _caso of the Western Saving Fund Society Y. Tho City of Philadelphin, 81, Penn. State Keports, 183, —also relied upon by defendant’s atlorneys,—recognizes the ssme powers in a city government. That the Cily of Chicago pos- sesues the powers of 1 public corporation is ba- yond all guestion—all the powers upon certain subjects that the State itsclt can esercise. It Liss granted to it by its charter powers to tax its inhabitants for the purposs of raising fuuds to carry on its systems of sewerage and streot imn- firovementa, to support its Bridowall, its various oards, and its schools, and other powers grant- ed for public purposes. It 1s not like railrosd, turnpike, and manunfacturing corporations, which mre_private, and not endowed with any of the Pn.‘)lic powers of State or municipal government. Tho fonds which the city is aathorized to 1nise, which the Treasurer is intrusted to receive and hold until paid out under the provisions of the charter, aro soch funds, o8 the 1aw on which the indictment is founded specislly enumerates. ‘The school fund of the city is as much for public purposes as the school fund of the State, county, and township ; the fund for the improyement of river, streots, bridges, etc., i3 83 much & fand for public pur- poscs a8 *any fund for the improvement of any public road, river, crook,” etc., enumerated in that law. As tho Treasurer of the city, then, is au ofticer 5o intrusted by law to collect funds es- tablished by law for public purposes, he is cor- tanly itcluded in the section of the criminal code under which he stands indicted. IMPLIED BEPEAL OF THE LAW. 8. But it is claimed that the law is repesled by implication ; that is, that the City Chaster of 1863 contains a comprebiensive aud detailed plan for the collection of moncys, its. safe keeping, disbursements, etc., with peualties for failure au refuual of the l'reasurar and other officers to per- form their duties, which, it is ciaimed, contains all the provisions thnt the Legislature intended should bo incorporated into the system, aud works o repeal of the previous general law hav- ing relation to the same class. Tho provisions of the Charter in relation to this subject are found in Chapter B, which estsblishes ‘ The Trensury Department,” cousisting of the Mayor, Treasuror, and Comptroller. Sections from 3 to 11 inclusive of eaid cuapter relate specially to the Comptroller, prescribing his duties in_ dotail, among which are (Sec. 8) to e all officers in Teceipt of revenuo or money of the city with the amount of such receipts; to require them to submit reports, with vouchers aund roceipts of payment thevefor into'tha City Treasury, as often s he shall sco fit; and, if any officer shall neg- Ject bis duty 10 this xebpect, thon to issue o no- tice in writivg requiring lum, within ten days, to make scttlement, nnd pay over the balauce of money found to be due and in hia handa belonging to the city, and, in case of refusal or neglect of such oflicer to pay over said bal- ance to the Treasury a3 required, the Comptrol- ler is to make repors of the delinquencies to the Mayor, who shell .at once suspead him from office, and proceed to institute proceedings for the removal of such ofiicer. TIE CHARTER DOES NOT APPLY TO TIE TREASURER. "This eection (8), 50 far as it makes suepension’ or removal {rom office the penalty for en oflicer 10 refuse or neglact to pay over balances 1n his hands to the City Treasnurer, does not ‘ltlxply to tho Trossurer himself, for the plain and obvioms reason that bo cannot’ bo required to pay over money to himsclf. The ofiicers referred to aro Colicctors, ete., whose duty it is to pay over moneys collected by them o the Treasurer. ‘This 18 rendered clearer, when we find that the duties of the Treasurer aro prescrived by subse~ quent sectione of tho same chapter, which duties are “to receive all moneys belonging to the city,” keep books and_zccounts, give receipts for all monoys pnid into tho Treasury, make reports, render accounts under osth, t0 lkeep the city moueys eeparate from his own, and not to use corporation money for his own uso and beaefit, or that of any other person, and for any violation of this provision le shall bo sub- ject to removal from office by the Mayor and Common Council. The penalty hero is for using city funds for his own benefit or thatof anoth- er; it is not for failing to pay it over o his suc- cessor in office, for which he stands indicted. Then Sec. 33 provides additional punishment of n_"n Treasurer if ho cmbezzles the money of the city. It is thus seen that there is, in fact, no pun~ ishment in the Cify Chorter fora failure and re~ fusal upon the part of the City Treasurer to pay over balances in his hands. REPEALS BY INPLICATION. ‘The principle contended for by the defend- aot's commsel s, “that a specitic and detailed statute in relation to o particular class works & repeal of the previous general Inws having relation to the same class.” But the later statute must embrace a complete system upon the . given subject, with all neces- sary details to carry it into operation; aud it must embrace slf the provisions of the first, and contain penaltics for every offense created by or provided for in the_provious law to work an en- tire repeal. United States v. Tynen, 11 Wallace, 89, and Norris v. Crocker, etc., 13 Howard, 429, These suthorities, and others referred to by counsel, sustain this priuciple, that the subse- quent act must revise the whole rubject of the former one, and must-be intended as a substi- tute forit. THIS OFFENSE NOT COVERED BY THE CHARTER. The subject-mnttor of this indictment is not the unlawful use of the city’s moneys by the Treasurer for his own or suother's benefit, nor for the embezzloment of euch funds, which un- Iawful use, or conversion and cmbezzle- ment, are subject-matters of the City Charter. But ‘the ° indictment in this case is for a distinct, tcparate, and substantive offense not provided for in the City Charter, and for the punishment of which there 15 no law, unless the one under which the charge ia brought is in force. A City Treasurer may not convert the moneys committed to bis custody by loaning it to otber and irresponsible persons, or by investing it in wild and specula- tive vontures, and thus not subject himself to indictmeut and prosecution for embezzlement ; set, without the statate of 1833 (1845), he contd kecp the city moneys in the vault of the City Treasury, refusing to pay it over tohis srccessor officer with perfect impunity. ACTION OF THE COUXNCIL, Thave purposcly abstained from considering questions of fact arising upon the action of the Common Council, or Committecs theroof, Dot amounting to ordinances and not having the forco of law, which comnsel reforred to and read in their arguments, becauso they connot be legitimatoly con- sidered upon the motion~ to quash the indictment. I mnust look to the averments con- tained in the indictment, and take them, o far 83 properly charged, sa trae. What effect reso- Intione never passed or reports of committees not sdopted may have, if competent evidence, upon a wial by jury, will have to be determined liereafter. If in them the defendant can find any justifi- cation or excuse for failmg to pay over tho mon- eys held by him, he wifl have the full benefit of it npon s trial by jury. mlTlaa motion to quash the indictment is over- ed. : sud e GENERAL REMARES, REPGGNANCY BETWEEN ACTS. Mr. Dexter—Will your Honor be good enough to say what view you take of what I consider the strougeat point,—which has not been mentioned by the Court,—the regugnancy between the later and the earlier act, : The Court—It is the ssmo_question that is in- volved in the repeal by implication. 1If it is en- tirely repugnant upon that question, there is no sort of doubt that it would be substitated for it. In the very voluminous argament furnished me by the gentlemen, I may have omitted some points ; T tried to cover every point_that struck me; if I bave nof, Iregretit; but I considered every question that was presentcd—the argu- ment was printed end furmshed me s few days ago—vwith & great deal of care and attentiop. DISFRANCHISEMENT. Mr. Bweit—I would eimply like to ask if one | siatute escaped vour Honor’s sttention; thatis the statute on the subject of disfranchisement ; providing that, if any city officer failing to pay over, shell be liable to be removed immediately {rom office. 3Ir. Reed—He discussed that in his opinion. . The Court—I discossed that question, I think, in my opinion. - I take this viewof it: That tho section you rely upon as disfrauchising and re- moving from office is the section that I insist ap- plies Lo Collectors and others—not to the City Treasurer; and that, when it comes to'subse- quent sections that apply to tho City Treasurer, the removal from offica for failure to pay over money is not provided for atall. Such ismy view of the case, and sach is my decision. . BEPUGNANCY AGATY. Mr. Dexter—L oply beg pormiseion to call the attention of the Court for the purpose of show- ingif anything really has, by possibility, escaped the Couri's attention, I address myself partic- alarly to the argument oo the indictment for not paying over; and I may, or may not, be right; but what I esteem to be tho strongest point in my argument was the repugnancy between the law of 1863 and the Iaw of 1833, in this: that the lawof 1833 allowed buc one excuse for nob pasing over, to- wit: ““unavoidable accident;™ ‘aud the law of 1863 provided another, to-wit: & ‘‘lawful losn- ing,” That is the poiat upon which I had vlaced the most reliance. Now there is another distinctive gronnd of repesl, which your Honor has considered, and only considered, as I under- stand it, and that is, whore there is a complete rovision of the scheme, then, by substitution, is there a repeal. But tho firat point that 1 mentioned, and one which I really consider to be unanswerablo—the repeal by repugnancy, in this, that the Jater Inw permits what the earlior law forbids—your Honor Lss not considered, sud may not consider it worth coosidering; but I morely mention it, with all respect, for tho purpose of gotting the opinion of the Court, if the Court has an opinion. CANNOT SEE ITS FONCE. The Court—Any srgument that Alr. Dextor or Ar. Bwett made would be wortby of considera- tion. There is no doubt about that. I feel that 1 bave considered every question that was pre- sented, st lesst I supposed thatIhad. If T omitted that, and if it did not strike me with the force it did you, it is unfortunate. But I do not now seo the force of the argument in opposition to the consideration of the questions as I have presentod them in the opinion that I have written. I have vory carefully looked at all tie Emvisxons of the city charter, which yon call the of 1863,—cach and every one applicablo ta Collectors of reveuue, and the Treasurer, who is the custodian_ of that rovenue, and wha has to disburse it under warrants, ‘Ymuer)y and legally drawn upon him,—and 1 find no one of them at il that, in my view, either repeals by gencral im- F!icntiuu, or is repagnant to, that provision of [n of 1833, us you call it, or'the law of 1845, when it was re-enacted, and will be found in the old revised statutes, 28 to render that provision of the old law a nullity, TUE SEW INDICTMENT FOR PERJURY. Mr. Reed—In your opinion on the motion ta guash the indictment for perjury,—as your Honor expressed it—I do not understand wheth- er your tonor expressed any opinion_upon the question whother he could be indicted 2t zll on the aftidavit. Bot I understand thet the lean- ing of the opinion is that be conld be. If these two averments which vour Honor decided wers necessary and were not in the former indictment were in a new indictment— The Court—Well: sufiicient unto the dayis the evil thereof. I quashed this indictment be- cause I think there are two good reasons for tt. But I do not proposc to give an opinion upon any indictment before it 18 found, or if omo is found, a8 I nuderstand from some newspaper parngraph that thers bas been, Mr. Reed~I was going to 3=y, gentlemen, at- torneys for the defondant, that there is an in- dictment on file, which was preseunted by tholast Grand Jury, that answers the very two objec- tions cnmglewly that Your Honor made to this onn ; 50 that it would leave the question upon that new indictment whether any indictmont at all could be framed upon this aflidavit. ANOTHER JUDGE MUST PASS ON IT. The Court—Tbhat is a %\leslion for the Judge of this Court, whoever ho may be, when the question is prosented. . Swett—Let us not get entangled about the facts. I confess that I do not understand this opinion_8s8 Mr. Reed does on that sub- ject. I understood the opinion to be thet the report, not having been rendered at the end of the montl, and the Comptrotler having a right to demand a report at another time, in order to make this a binding report, or legal report, the time Laving passed, the Comptroller must have made an official demand upon him for the report. FILING ACCOUNTS. The Court—That 18 my view, and it is 0 ox- preseed in the opinion, I may not bave beeu very clesr upon the point. My view upon the question was, that, if the Treasurcr goes into the Comptroller’s ofiice and files his account without oath, or at the end of the month, or the first day ‘ot the monti, which, I think, would be s substantial compliance with it, aud the Comp- troller receivea that report, there can be uo perjury assigned upon it, because there is no oath: and he cannot afterwards go into the office aud make an afidavit, unless, at the timie he makes that affidavit, he is requirad tomako his scconnts under oath. Then, if be is required by the Comptrolier to mako his ac- count under oath, and swears falsely, he is guilty of perjury. Tho face is, that if he edopts as his report the report lying in the Comptroller's ofiice,—tho identical paper,—and makes afidavit to that that day, under the requircments of the Comptroller, I think, if any one item 13 fslsely sworn to, perjury may bo sesigned upon that. 1 intended to incorporate that in the opinicn. Mr. Reed—That is just my anderstanding of the opinion. We have discussed this question very fully before Your Honor. Theso gontle- men havo furnished Your Honor very elsboz ate printed briefs, which I also have rceeived, and Your Honor is familiar with the question. Now, if I can get sn opinion 1rom Your Honor upon that point—whether the uew indictment with the objections removed would hold good—1I would like to have it. NOT TO BE ENTERTAINED JOST ¥ Mr. Swett—\We do not expect to make a motion to quash a new indictment which wo have not seel. The Court—I sw not Judge of this court just at this timo. Mr. Reed—Yyur Honor just aoswored a ques- tion that Mr. Swett propounded, and I thinkif is but fair for e to ask one. The Court—I said I thought it was covered in the opinion 1 heve already dolivered. Mr. Reed—This new indictment alleges that Gage, by his own folly and neglect, did Dot ren- der his account at the end of the month of No- vember; that aflerwards, to-wit: oo the Gth day of December, he did render it, and that he was then azd there roquired by law to reader it. That is diafinc!ly elleged in the indictment. Mr. Swett—We will cross that stream when we come to it. The Court—I do not propose to entertain a motion in & court in which I sm not presid- ing. GIVING BAIL. Mr. Reed—T wish to bave an order now made, that theso gentiemen may eithor give bail to the newindictment orconform o the uniform practice that where an indictment is quasbed for some reason upon ite face—not going to the merits— that then the order of the Court is that the bail shall stand to any mew one, or they may give bail under the new one. T am not particular about that. Tho bail under the indictment which the Court has sustained is 8100,000,—that is the ome fornot paying over tho money,— and 10,000 under the perjury indictment. Afr. Swott—Let the order stand. Mr. Reed—Let an order be entered, then, that the bail stand to the indictment which has been found, Mr. Bwett—1We have no obfection fo the order. o e PREPARING FOR TRIAL. The State’s Attorney then requested the Clerk to farnish defendaut’s counsel with s copy of tho now indictment, and Judge Rogers retired from tho Bonch, Judge Moore taking his place. ONDAY WEEK SUGGESTED. Mr. Reed—If Your Honor, Judgo Moore, rlease, 1 would like to move that this cage, for failing to pey cver the money, be set for trial a week from pest Monday. That will give them plenty of time—all that remains of this weck andnext week—to prepare. COUSSEL CANNOT CONSENT. Mr. Dexter—I cdnnot, if Your Honor please, on account of professional engagements, be ready at thet time. - I desire to state what, and how important, they are, and I think the Court will ree it is an imperative ex- case. What are known as tke tax cases, involv- ing & large sum of money,—n the Chicago, Bur- Jington & Quincy disputed tax of $250,000 to £300,000, and other railrosds and companies which I with othera represent,—bave been teken n;mu & pro forma decreo to the Supreme Court of this State, and the Judges hsve given us twenty days from last Mondsy to prepare and filo our arguments. 'They sre cases of very great importance, snd we are now busily at work upon them. I have to go to_Springtield to do a portion of the work, and I do not sec how it is possible for me, with any sort of faithfal- Dess, to discharge my duty to my clients. And { that business is already entarad upon. 1t {a fixed. I have no control over1t; aud I need every mo- ment of tho unexpired time, and, indeed, mors if I could command it, to do that work =t all woll. And I cannot sce bow I can control, whila I am under this mandate of the Supreme Court, an hour's time for the next ten or twolve daye. 1 bave made no preparation of the facts in this caso, cnd hope that a later date may be sug- gested. Mr. Swett—I desire simply to gay that cases which I have already entered upon—trials that oro eet or e'uat coming on—will occupy my time all of next week, and I kmow of no way to es- cape them. If this trial were set for a week from next Monday, I have no way except to_break off prior engagements and come inta this court without a minvte’s preparatiou. £ . Alr, Reed—I will inform Your Houor, this be- ing the firut term of this court you have held, that there is & rule of the court, which was adopted and entered on the record some time ago, that the cngagements counsel may have in other courta shall not be a_good excuse for de- ferring criminal. trials. I do not wish to be op- pressive, I suggosted that day becauso I want to get the case off toy hands. It is a burden, and oppresses mo all the time, aud L want to get it out of the way. Mr. Swect—Allowme, Mr. Reed. Do you under- stand I could go to s court and tay 1 was nob engaged in this _trial here, but I wanted to get ready for one, and, tharefore, L did not want'to try & caso that had been set in the Circuit or Su- perior Court? Mr. Reed—The rule is that no enzagement of couneel in other courts shall be good ground for Ppostpoving a case hero. ‘The Court—Ie that rule of record in this court ? Mr. Reed—Yes, sir. Mr. Swett—And the reason for thatis, it I am actually engaged iu the trial of & case in the Cir~ cuit Court, and a trial comes on here, I have to enter upon the trizl. That is the esscuce oi the excuse. Dut it is not any excuso in reforence to casos in other courts that I bave to prepare for a trial hero. The Court will recognize iu this caso that counsel ought to have reasonable timo to get ready for trial, we not having addressed ourealves to the facts at all. The Court—I find that it is the desire of all courts to give ampls time to tho partics to pre- pare. X prefer that you would consult your con~ venience und agree qun o time if you can,—suy carly time ; I do not know how long it will take to try the caso. TALE IT OYER BY JMONDAY. A whispered coneultation tuen took place be- tween the learned counsel and the Stato's Attor- nu{[, and ot ita conclurion r. Recd said—It is suggested by the gentle- ‘men for the defence that perhaps to-day or to- morrow morning they will tallc about their engegements, aud what they may want to do in tlie case, and agreo with me upon some day for the trial. Thero will be no cowt to-morrow,— ung‘nlgfiond:\y moruing. e Court—I can come to-morrow morning. THE OTHER INDICTMENT. Alr. Reed—It can be doxnoe just as well Monday morning. If wecsn agree we will come in and have eome time fixed. Now, gentlemen, what will you do about the other indictment 2 Mr. Swett—I do not want to stipulate about tho other indictment at all. I have not read it. Mr. Reed—I do not waut you fo stipulate. Mr. Swott—I think we can'fix it Monday morn- ing. - e Court—Very well ; then this case will be paesed until Monday moruing. And with this understanding the counsel and 2r. Gage withdrow, leaving the Stato’s Attorney todevoio his time to prosccuting the insignifi- cant cases on the docicet. WISCONSIN MINERAL LANDS, Lease of the Eruit Farm, Near Janes- viile, by an Amateur Mining Coms= pany. Special Disvatch to The Chicaao Tribune, JaNEsvILLE, Wis., Feb, 13.—A lease was signed to-day by Junius Finch and wife, of the first part, and Horace A. Dearborn, Richard C. Love, Richard Tatteghall, Alfred Taggart, and John . Reigert, of tho second part, by which the party of the first part conveys to the party of the sccond part all the coal, iron, oil, or mineral whatsoever which may be found upon the Finch farm, in the Town of Rock, during the next fifty years. The parties of the second part hava the privilege of extending the prvilege another balf century, if they are fully eatisfied at the end of the first fifty yeara .that it will pay them to continue digging. .Tho terms of the lease give them tho right to dig, bore, mine upon, and haul mineral from, the land, etc. The lessees are to pay Finch 50 cents for cveryton of coal or other mineral taken from the property, slso to pay him 23,000 for the first ton of coal taken out after they become satisfied that it exists in paying quantities. The lessces agree, further, to sink a hole 30 feet and 4 inches 1o diameter, within 3 rods of the old well, proyious to the 8lst of March. If coal is found through tiie opening, they will put down a shaft. The lease was placed on file here to-day. The gemlemcn who bavo leased property reside 1n and near Beloit, Wi - JAPAN. Arrival of a Steamer at San Francis= co---Summary of Late Japancse News. 8ax Fraxcisco, Feb. 13.—The following sum- mary has been_received by the stcomer Japan : Yorouauas, Jan. 23.—Iwekura is rupidly re- covering from bis wonnd. No positive clue to his assailant has been discoverad, though sev- eral arrests have been made. The official census for 1872, just published, fixes the entire population of Japea at 33,110,825, meles and females being almost equal in nume bers. There are 29 members of2.the Imperial fapuly, 409 of the highes: nobles, and aboat 700,000 of the lowar order of geatry. ‘The pogition of the German Ministar— Von Brandt—in his dispate with the Japanese Government, is understood to be as follows: He cleims thot inasmuch as the existing treaties exclude all foreigners from the ioterior of the Empire, the Japanese have already violated it by introducing foreign tenchers, etc., for the in- struction of their youths, tho development of the mincral resources and other kindred pur- poses, On this ground he proposes to resist the further exclusion of any of Lis countrymen who chooe totravel beyond the prescribed limits, aither for pleasuro or trade. The native authori- ties are firm in their defiance of what they calla monstrous assumption. A memorandum of the Japanese Foreign Offico to the Europenn representatives, mentioned in tho despatch of Dec. 23, refuting the srguments in favor of an oxtension of ex-territoriality is reiterated. The matterof the proposals is no less objectionable than before, although tho manner is less offensive. It is noteworthy that this document is not signed by the United States Minister. A sccond nnawer by the Japanese is eluu.fly hareh in its rejection of the demands. This correspondenceis éaj:obzbry now terminated, though further verbal discussion will be allowed. The tirst communication took place last fall,when intercourse and trade wera solicited, subject to a schioms of internal jurisdiction laid down by the foreign Ministers, and to bo executed by the Consular suthority, Iu their last reply, the Japanesa refuse to eatertain any proposals Took- ing to the opening of their country, cxcept by means of an entire rovision of the treaties, pre- vious to which they will require the credentisls authorizing tho Ministers to act in so important amatter. They say that sach = radical step must be regulated by conventions betwcen the nations, and not by agreement between the For- cign Ofiice and the European representatives. Florida Officc=iolders. A remarkable caso of tenacity in office-holding is furnished in the State of Florida. In that State the Governor has the power to remove any person holding the offico of Sheriff, The par- son who holds the offico of Sheriff of Wakulls County is elso Postmester at Crawfordsville. The people of that county bave long petitioned for his removal from both offices, but the peti- tions were rejected. A short time ago the Post- master was convicted of robbing the mails, and sentenced to ten years in the Penitentiary, 'Tho Governor still refuses to remove him from the office of Sheriff, and whilo he remains in the Penitentiary ho will run the Sherifl’s office by deputy. The only wonder i3 tbat he isn't ai- lowed to run the Post-Office in the same way. ‘The champion office-holder of Florida is thus referred to by the Gaionsville Era : * When the Hon. L. G. Dennis left ug for his Northern trip, to be absent several months, we lost in him our Benator, County Commissionor, Board of In- struction, Deputy Marshal, Deputy Sheriff, Depu- ty County Clerk, Treasurer of School Funds, Cnstodian of County Treasurer's books, Senior Councilman, and Acting Mayor. Nearly all pub- lic businees was suspended until bis return,” —_— The Funeral of Parepa~-Rosa. On Mondey, the 26th uli., the remains of Msdame Parepa-Rosa were interred 1n Hig h- gate Cemetery. The London Telegraph furnish- € the following particulars of the faneral : “ The procession left Warwick Crescent short- Iy before 11 o'clock, and consisted of three mourning carringes. In tho first of these were Mr. Carl Rosa, Mr. James Howell, Mr. Edward Howell, and Mr. E. Hogarth ; in the sccond were Dr, Bruce, Mr. Cowen, Mr. Evana,and Mr, Jack- son; and the third coach was occupied by tho faithfal companion of Madame Dosa for many years and by tho honschold scrvants, the corfege beiog brought up by private carriages, At B.ianMe 8 very largo assembly awaited the arrival of the mournful procession, and the £cena both in the chapel and round the grave during the solemn gervice waa touching in the extreme, a lorgo proportion of these present mal o attempt to concosl their great sor- row. Prominent amongst those on the spot were Sir Michael Costa, Mr. Santly, Mr. Ganz, Mr. Patey, Mr. W. 8. Gilbest, Mr. Bonnett, XMr. Grunéisen, Signor Traventi, Mr, Chatterson, Mr. C. Lyall, Mr. Nordblom, ALr. W. D. Dayid~ sou, 3ir. Randegger, Mr. Hersee, Afr, Maybrick, Mr. Peareon, ote. ¢ The widely-spread affection with which 3ad, Parepa-Rosa wos regarded by all classes of her profession was further cvidenced by the number of the members of the chorus, who by their esence testified their deep regrat for her loss. Fhio heavy osken cofinson whith the words *Euphrosyne Parepa-Rosa; born May 7, 1836; died Jau. 1, 1874," were inscribed—iwas, on being Jowered into the grave, covered with rare and costly flowers, amongst which was a beautiful wreath of camelias, azaleas, and violets, sent as = spocial tribute from the opera company with whose provincisl career the name of Rosa has been identified.” THE PENNSYLVANIA COMPANY. Their Suit Against Sherman & Allerton. A New Trial Granted by Judges Drum- mond and Blodgett. The motion for 8 new trial was granted vester- day in thé case of the Penusylvanias Railroad Company against John B. Sherman, Archibald M. Allerton, and Samuel W. Allerton, The case has becu closely contested, and, as the amount involved is £500,000, s resame Will perhaps be intercsting. In 1864 the Pennsvlvania Railroad Company, desirous of increasing ite buslness in tho ship- ment of stock over its railway, leased the stock- yards at East Liberty, near Pittsburgh, to Bamuel W. Allerton and Joseph McPherson, since decessed. It was, however, stipulated that A. ML Allerton and John B. Sherman were to form a copartnership with the two former parties in this affair. In fact, A. M. Allerton and "Sherman were the two more important partics, both being very heavy shippors nd able to inflnence business. In August, 1864, Samuel Allerton came to Chicago and gavo such a discouraging picture of affairs that Sher- man willingly agreed to o dissolution. Shortly afierward, howover, ko ascertained some facts which put' s now faco on matters. It _appearcd that the business at East Liberty, instead of bolog disasirous, was very successfal. Sherman, therefore, desirous of obtsining 2 share of the profits, commenced suit against Allerton to have the dissolution of partnersbip declared void be- cause it was procured by fraud, and for an ac- count. * This suit was dismissed, howov er,after a time, and another brought, in which Sherman, after a long contest, obtained a decree in 1872 against Sem Allorton for 2n account. An account wasof- fered,but it was believed to be incorrect, and the suit 28 still pecding. Enongh was learned to show that the probable profits wonld have been $100,~ 000 a year had the partnership been continued. Tl lease was originelly for ten years, but in February, 1870, the Company terminated it on thutgru\md of non-performance of the cove- nants, In April, 1873, the Pennsylvania Railroad Company commenced an action in covenant here against the two Allertons and Sherman, laying dumages at £500,000. The declaration eot ont the makiog of the lease, its terms and duration, and chargod that the defendants, especinlly A. M. Allerton and Joba B. Sherman, Snmuel Aller- ton and McPherson being ouly joined a8 mattar of form, bad broken their covenants and had ‘used their influcnce covertly in behalf of other roads, and had indaced shippers ro eend their stock by the New York Central Railroad insteaa of the plaiuzil's. The defendants filed pleas alleging that they bad in all respects complied with the terms of the n%‘eoment. On the day of the trial, how- ever, Bhorman and A. 3. Allerton put in a plea of DD est factum,—i. e., that they had not uigned the lease sued upon. Mr. Storrs, who bas managed the case for tho plointiff, offered testimony to prove the lease in evidence. To this the defendants, who were reimsenwd by Walker, Dexter & Smith, Ayer & Keles, and D. Goodwia, Jr., objected, on the ground that parol evidence was inadmissable to vary s written instrument. So that if the suit 'was on the instrument Sherman and A. M. Aller- ton conld not be_held, and if on any oral agree- ment, thea the written lezse was in- admissible. Mr. Storrs replied -that the evidenco offered tonded to that just previons to the esec 8 partuership had been made 2t certain hotel, sud that it was not chaoging tho lease to show that there was a partnership between the de- fendants, that all wero parties, and that two of them bad signed for all. Judge Blodgett re- marked that the evidence going to prove the parknership should be introduced firat, It was then taken and the questicn raised sgain. The Judge thereupon, in an extended opinion, after an argument of two days, refused to admit the lease, holding that the question was whether the party could, by gnro\ proof, supplement this deed 8o 88 to bind the defendants not joining therein. Tho genoral principle, he eaid, was familiar, but authorities were introduced to prove that under certain circusstances it could be done. He did not think, however, that the presont came swithin those rnles. He decided, moreover, that the evidence introduced ahowed that no firm bad been formed,—they were only taking the initial steps. The question was as to the competency of the testimony to make the defondants liable, not to the weight, and the de- cision was that it was all inadmissible, and must be excluded. Mr, Storrs then, under loave of Court, filed an additional connt, and ihe next doy formally of- fered to give evidence in support of the issues, which was refused. Leave was therenpon asked to withdraw a juror, and have the case continued on the ground that the decision of the Court bad surprised bim. This was refused, and tho Judge instrocted the jury to find for tho de- fendant, which was done. MMr. Storrs made a motion sabsequently for a new trial. The argument before Judges Drum- mond and Blodgett took the grester part of three days, and was ably contested. The simple question was whether the evidence offered to show a partnership should have been allowed to go to the jury instead of being decided by the Court. At the conclusion of the argument, Judgo Drummond remarked : 1 have my own protty clear views upon the sabject, It depends altogeiher, I think, upon the facts in the caso and what the facta are—ihat is, what the facls tend fo prove—whether there 'are any facts which fend to prove this particular issae. That is oll there is about it If there were any facts that tended to prove it, why then, of coursc, there ought to bo a new trisl granted, I think it is undoubta edly true this ig 3 contruct mada between tha Pennsyl- vania Rellroad Company and two persons—ihat is, it purports to be mado _between the Company and two Fersous, s 1 understand it. 1 have not seenit. If you show that there wns a partnership, and the part- nerabip namo vas uzed by the parties who made the coptract, then, 2a T understand, can_introduce evidence to show what this partnership may be. - That ia §n accordanca with a well-recogn: nciple.. Bat, of course, it is incambent upon tho plaintiffe—the con- tract purporting to be made between two persons—to show tho fact thst there was 3 par‘nership, and that this is the partnership name, and that this partnership included not two persons but four, The decision was to bave been delivered by Judge Drummond, but he was obliged to go to Springfield, and he, baving conferred with Judge Blodgett, the latter rendored the following opin- ion yestorday morning: A motion for a new trial was made here by the plain. Hfl some time ago,ond fully argued befors Judge Drummond and myaelf, Upon a careful examination of tho questions which came befors tbe Court at that time, and the decision, we Lave come to the coaclusion that the Court should, under the pleadinga and ques- tions raised in tho cise, have allowed the question whether there was a partnership or not, to have been passed upon by the Jury. The evi- dence, s it {3 now presented, whem it comes %o be collected and put fn form, it must be admitted, doss tend to show ot least thet {hero was a copartner ship, and that the name upon the contract excluded e Court represented & copartnership rather than the individuals; aud we therefore, of opinion {hat it s bttor that a now tris] ahonid b granted, aad that the parties stould hase the opportunity of pre- eenting the question of whether the instrumentin :1);!;&!];-1(0’::1v ;;B really executed as Lhe‘loln contract of y Whose name appears U or 83 8 coj Reratip canteact; 1 go o te Jurge 5 Wo think it ia hardly posaibleihat bill of excep- tons could be mado up in the casoto take the czs2 to tho Supreme Court which would not show tisat there was testimony (n the case Which ought fo have been submitted to'the jury upon the question of tho exist ence of & copartnership, and whether the instrument in question wuo the acu of the copartaeraip or theacts of the individusis whose names appear. A new trial will, thercfore, be granted, MMr. Btorrs announces his determination to bave the case redocketed to-day, and to try it again in April. The case is one of great magni- tuds, both a5 regards amonetary and legal point of view. The trial, when it accurs, proba~ bly take $wo or three weeks, THE COURTS. Suit by the Globe Insurance Company. The P. 0. B. Company—A Bank. rupt’s Homestead, Another Bank Enjoining Collectop Cleary. A COSTLY ELDORADO. ‘Reuben P. Layton is again in trouble sbout bis Eldorado Ditch. About two months 850 he tiled a bill to restrain a sale under a trust-deeq obtained under false pretences, and yesterday ha Tehearsed a similar story, which is, in brief, ag follows: In May, 1873, one A.T. Rice, acting a8 agent for Clarke, Layton & Co., of this city, purchased a Sherift's certificate of eale of the Eldorado Ditch, from Malthuer City to Bumy River. The judgment on which the Sheriry eale was made was said to have been obtained by dofault against the Malthuer & Burnt River Consolidated Ditch & Mining Company. Thomas J. Carter and W. U. Packwood retended to hold the certificate which they soid for $29,700. Rice, as agent, gave notes for thiy amount in the name of the firm of Clarke, Lay. iy - s n Beptember last, ons of the notes, bein, £8,000 i1 gold, was sont on here to the Mansne, torers’ Bank for coflection. About the yiame time Carter borrowed £50 of Layton, reprocent- ing himself to be the holder of the notes in ri\‘mstlun, and promising to credit that sum on tho £8,00 note. When that was presented, hows ever, no indorsement of S50 was made, and the firm refused to pay. Shortly after, the panio came, end, Clarke, Layton & Co. being temporn- rily tnable to pey anything, and Holmes, the Cashier of the Mauufacturers’ Bank, Tessmg them for payment, Laston indiviadally gers s trust-deed on_certain lots in Mcllroys subdivision of the W. 35 of tho 5. W. X of Bec. 1, 39, 13, which was due in sixty days’ after data, This has matured and ig noraid, and the Trusteo has ndvertised to sell. Layton asserts that the whole sclieme is a swindle; that thera never was such & corporation as the Malthuer & Bumt Riyer Consolidated Ditch and Mining Company; that the judgment and Sheriffs certiticate are void ; that the consideration for the nates hag wholly faled. YWherefore he acks that Holmes may bo restrained frem selling under tho trust-deed, and the salo may bo de cided fraudulent, aud the' notes ordered to bo surrendered. TUE GLOBE INSURANCE COMPANY’S TEOUBLES. A voluminous bill was filed lato Thursday afe tornoon, in the Superior Court, by the Globe Ine surance Company of Chicago, George K. Clarke, and A. F. Fawcett, against William H. Steven son, of Fraitport, Mich., and wite, aod the Atiag Insurance Company. The complaiuants state that the Globe, in November, 1571, opened its books for stock subscriptions. Among those who beceme stockbolders was the defendant, Stevenson: and, inducei by him, Ciarke and Favcett subterilied. Stevanson took 500 shares, and paid for them by 2,000 shiares of atock in the Fruitport Magnetic and Sulphar Springs Compa- ny of Michigan, at the par value of $25 3 sharo, which stock was accepted by tha oflicers of the Globe, Stevenson having represcnted it a8 good, and the corparation solvent. Clarko took 250 shares, and Fawcett 500.- Stevenson, in January, 1532, bo came one of the Directors of tho Globe Insure ance Company, and was chosen one of the ofticers of the xfnutpm Company. In August, 1872, the affuirs of tha Globo be- came involved acd tho capital stock impaired by the losacs in the great fire, aud by the failate of certain stockholdors to pay for their stock, Ay meoting of the Company was held and an agres- i ment was made to call for 25 per cent on tha i:“ value of the stock, orto ask tho stocks: olders to surrender stock equzl to 30 per cent of the amount held. Clarkeand Fawcett paid tho 25 per cent. Stevenson, however, surrcndered 30 per cent of bis stock and received new certif- cates to the amount of §32,500, be haviug aciually had 846,500 worth of stock before. Of this naw stock hia wife ostensibly held 250 shares, Complainants assert that they did not, and could not, know of tho vaiue of th stock in the TFruitport Maguetic and Sulphur Springs Com pany, but relied wholly on Stevenson, who as- Serted that the Company was flourishing and ity stock valuable, and worth $50,000. Clarke and Fawcett have since ascextained that the stock of said Fruitport Company is_not worth more thsa 10 cents on the dollar, nor has it ever been worta more than that. A large smount of stock has beon issued in excess of that euthorized by the charter, and the aszets arenotmore than eqnal to theliabilities. When complainants did discoverthis frand, they immediately offered to return the Fruitport Cowpany siock to Stevenson, oud de~ manded that e should swrzender tho stock in the Globe hield by him, which he rofased to do, and they theretore have brought smt. TUE P. O. B. COMPANY. An immeuse pettion aud a bundle of affidavits appeared vesterday atternoon in company with Mr. Beutley, and asked to bo filed. In the petition’ & very minute and accurate accoust of the Company’s doings sinco tha vear 1 was seb forth. Among other things, it was mentioned _that when the petition in bankruptcy was filed, my injunction was imsued to preveut Herbert, trustee, from selling under a trust deced for $24,500 given in favor of W, D. Math. eney by the Combany. -Mr. Bentley, attoroey for Herbert, now files a petition to have ibe injunction dissolved and Ilerbert allowed o sell, Afdavits were filed by Pratt, Bickerdiko, Derbert, and others, and notice given that the motion to dissolve be called up before Judge Blodgett this morning. A DANKRUPY'S HOMESTEAD. In the case of W, C. Pohlman, 3 bankrupt, the question was raised some time ago, ‘whether, when 3 bankrupt bad, previeus to the preceeds ings, conveyed his lnnd by trust deed, releasing the ‘mmeszead, such a releaso would operate in favor of creditors, or if thehomestead exemption must still be sct off to him, Judge Blodze!s keld that notwithstanding & conveyzuce of the ex- emption to a Trustec, the bomestead cxempticn ‘would remain to the bankrupt as sgainst sl othes creditors. : ANOTHIER TAX-FIGHTER. The International Bank of Clucago filed bl against P. M. Cleary yesterday in the Circuil Couri to restrein Cleary from collecting thetaxes on its eapital. The motion for an injuaction will be argued this morning before Judge Farwell. UNITED STATES COUET. TRobert E. Hastings and Jobn V. Hastings eome menced an action against the Lakeside Publish- ing and Printing Company for $1.000. TANERUPTCY ITEMS. Walter L. Bladen was adjudged bankrapt b default, and a warrsnt issued returnable M gp !lllm matter of WélfinmmP. Thompson st al, a discl e was issued to Thompson. 2 Josna: Darsell wan xgpbiuwd Provisicaal Asuignee in tho matter of W. Frank Wentworth, with hberty to take poussession of and ron botel in the nsual course of business. Jacob Metz was adjudged bankrupt by eio- fession, and G. W. Campbell appomnted sional Assignee. ) ) William P. Gray filed s petition against Pacl Sntclifle, s mannfacturer of trunks sud Petitionor claims 3500 due him on ten note, which have been unpaid for more than fourteen days. A rule to show cause was mado for Feb. In thematter of the Garden City Manofschur- ing and Supply Company an order was made for the sale of the Campany's rezl estata, 'mcht’:-: mortgaged to A. C. Hesing for 230,000, and the Ccunwflt;cu;mll‘l‘zltqu} ];Iun T]ns'xmnh qu:e C.vs-' any for 320, itiopal. The premise ook 23 Xln ‘\‘gnlah L& glgdllzllen'l ‘Sabdivision of the S T X of Sec. 20, z In the matter of Robertson, Elsio & Co.13 order was made for tho bankrupts o flah':; < the Assignee their books of account or ho! csuse within two days after service. STPERIOR COGRT IN BRIEF. AMorris Stern, David Troutman, sod Luhle.“_ Elterman began an action Bfi:inn Julins Gue:& and Mayar Guettel for 81,000 The Sunmhez & Chicago h(;iuuil and E?d{, fmfla any brougbt saic in ejectment again: R Canvny,g “Thomas F. and Zichasl Doyle, b ing damagea at 31,000, W Ernamun . Molott commenced an sction az;:mpait taagxg%ala Samuel J. Walker, 1yl ages at $10,000. Witliam O. Harria also sued 8. J. Walker {2 £8,000. i . Craw Brothers' Mannfacturing Company Kzfls: an action against August Evart and Jaco for $1,500. CIRCUIT COURT. =5 Franz Ernst Heno begsn an action in trespsdd agains Martin Sorvis, claimiog $10,000. ‘Hirem G. Morse brought enit sgaicst Bradley, 'I'. M. Bradley, and H. B. Tooovee 1000 worth of household et Madison streof _B. F. Brophy recovercd a verdict againsh L city for $1,600. < oo )