The New York Herald Newspaper, February 25, 1853, Page 2

tl ta of the city of New York, resides in THE BROADWAY RAILROAD CASE. | Shem argthoce for whom they provecute ;, that | arr throrgh their ingalgence—and pesiaps they pres Supreme Court. by their donation of the street, at t the dedica- ; wT OF EX~ ri tae | tion of the use of it to the public—it rests with them, etic oe eo subject simply to that easement, and with them alone Before Judges Edwards, Morris and Strong. | rests the power to co any act whatever in respect to Pus. 23.—John Milhaw and others vs. Jacob Sharp | this street that is not mel and purely an act of and others. | travel, according to the old aceustomed mode of Ex-Chief Justice Jones said :—If the Coart please, | travelling in the streets of the city of New York, and after the able and astute argument of the counsel | that any act beyond that is a trespass; and if | who opened this case on the part of the defendants, | derstand the counsel upon the other side corr: it seems hardly necessary that any addition can be | they have a right to sue in trespass, or bri made, instructive to the Court, or useful to the par- | ment, to recov@r the property, as being taken ties. It, however, becomes my duty to make such | their possession, Another ground is, that wherever remarks upon the topics that have been agitated be- | the legal estate resides, the streets are heli, by whom- fore the Court as shall occur to me to be material. | soever they are held, as a public trust, for the use of The brief history, # the Court please, of this coutro- | all the citizens in the city of New York and all tra- versy, which has seen brought to the position it now | vellers desiring to use them; in that proposition, Bastinies, may be stated ina few words, The city of | properly put and properly understood. Taccord, for Wew York, until a comparatively recent period, has | | make no pretence of claim to an interest in these stood in no need of that complex system, if I may | streets on the part of the corporation that should au- go call it, of transportation from one part of the city | thorize them either to sell or in any way dispose of to the other, which is found now to exist; and in those | them, or allow them to other than the legitimate uses simple times no question relative to the use of streets for which they were established. They aseert, further, for the purpose of travel could or did exist. The | that the corporation have no power ever, by their | aystem of hackney coaches was the only one that | charter or by statute, to authorize or license arailroad | was then in use. “As the city progressed, however, to be laid “down in any of the streets of the city: im popalation and in business, it was found that, trom and that, as respects this particular railroad, by | the formation of the island upon which it was built, | bad the power ot legislation at all it is not the resuit of necessity would require the establishment of some legislation, but that it is a mere contract or grant means of intercommunication between the upper made or entered into by the corporation of the city of the city, which were becoming rapidly resi- | of New York with Jacob Sharp and others, for ces, and the lower parts of it, which wen Ay ie Rane pon the ,prenorasion of ened ing i siness operations; and the | Jaco! arp some interest or some right whic! aere evens ies be ; he has now the power of claiming adversely to the devised for this purpose was 5 iat one tailed pesto and seus which su- | corporation. If this be not so, then I cannot understand perseded the former arrangement, and took the | what is the meaning of*by contract,” or “by grant;”” e of the very imperfect communications | but it ought to mean, as they term it, ‘a monopoly;” t had subsisted for some years between the western | thatis to say,a railroad can be used only by those suburbs and the business part of the city by means of | who lay down the rails, and, therefore, it is a mono- the Greenwich stage, and with the eastern part by | poly; and, moreover, that it would be—because at the means of the stage which drove up the Third avenue | not be st te about Thirty-fourth street. These omnibuses at | 1s a public nuisance. This, as far as I understand the first answered all purposes. By de; , however, it | complaint before you, and the argumenty, of the was found that they were 80 multiplied, for the ac- | opening counsel, jis, in effect and substance, the commedation of the upper parts of the city, which | whole scope of the legal objections against this were beginning to become so very populous that in | measure, with the exception that they take the our day we all knowthey have become to be a public | ground that this resolution has never passed, because uisance. Broadway, the great artery of the city, | the Board of Aldermen was not duly assembled and which must ever be the great thoroughfare, con- | when they voted upon it; and, monde that it is in- necting the upper parts of the city with the lower, | operative and ineffectual, because the Mayor has not has become thronged with these omnibuses to such a | concurred in it. But, sir, in addition the legal degree, that between Canal street, | may say, and grounds, they have put before this Court, with great Wall street, and especially between Fulton street and | parade, these offers of accomplishment, with abun- Wall, where all the omnibuses from all quarters of the dance of insinuations, though with not a particle of eity concentrate, it is dangerous to attempt to pass the proof, of bad faith and corruption upon the part of street in business hours; and itis almosta denial of ac- | the Common Council; and this constitutes the en- commodation to those who liye out of the business part | tire, if [ am correct in the view I have taken of the of the city of any accommodation whatever, in any of | complaint now before the court, and for which this the times when it is most needed, that is,in the times | injunction is asked. The first proponisie which has of storm or difficult travelling upon foot. The omni- | been taken by us, and to which my associate coun- ‘buses are so crowded that it sometimes occupies near- | sel has spoken at length, is that the corporation ly half an hour before a person residing as high up | had the power, under the charter and statute of the as Bleecker street can possibly obtain a passage. State. This, if the Court please, from the brief ‘These inconveniences pressed so strongly and so | summary I have given them of the state of the case, heavily upon the public, that for some two years or | as it now stands before the Court, is meeting one of more past there have been continual speculations for | the objections, and { apprehend the main and prin- the relief, as it is called, of Broadway. Numerous | cipal objection, in point of law, that is preferred by | prejecta have been started, opening new avenues in _ this complaint against this particular work—that the streets; but until recently, however, the idea which | corporation had no power, by charter or by statute, has all along been occasionally suggested, at | to authorize or license the laying of those rails in different quarters, namely, that of arailroadin Broad- | Broadway. Of course, if the Court please, if they way, has not been seriously before the people. Well, | are correct in that position our whole ground @ company organized itself for this purpose, and made | for maintaining the resolution which has been passed an application to the Common Council—the legiti- | nour favor must fall from under us, because, if the mate source from whence licenses must be obtained, | corporation had no power to grant it, of course we ifat all, for such a project—offering to construct a | have no right to claim it. Is this proposition true in railroad in the centreof Sroaaiway. upon terms which | point of fact? This question has already been be- were deemed very advantageous to the public, and | fore the Supreme Court of this State, upon several nota little onerous to themselves. Unexpectedly, | occasions, and I had thought was put entirely at rest, however, to the friends of that measure—because, not- | if not by the case decided by this Court, of Drake vs. withstanding all that is said, that measure had many | the Hudson River Railroad Company, yet by other friends among the most respectable citizens of the | cases which have subsequently been decided by the | city—anexpectedly to them an opposition, virulent, | different branches of this same Court. We, how- persevering and ubtiring, grew up against the mea- ever, are now to approach it, as I understand it, as gare, chiefly from the owners of property fronting | an unsettled question. And first, then, if the Court | apon Bi lway—not the business men doing busi- please, we apprehend that this power is vested fully mess upon Broadway—not the men to feel the actual in the Sorncrasitay of this city by the two charters apes if it be an inconvenience—but those who that have been brought to the notice of the Court, ld property upon it, and who believe, which isan | viz.: the charter of Dongan and that of Montgomerie. entirely mistaken apprehension, that it is, if adopted, by these charters, as we understand them, the streets to be not only injurious, but, as some of them repre- | of the city of New York are, in fact, as far as the sent, ruinous to them, depreciating their Property f nearly one half, and becoming, as they would have ly vernment then existing had the power to do, legal- sted—the title to them legally vested—in the us believe, a public nuisance. Well, if the Court corporation of the city of New York, as it then was , these gentlemen remonstrated when the composed. The first of those charters —-Don- | whole subject was before the legitimate tribunal that | gan’s charter—was adopted in the Mord 1686, at -was to act and decide upon it; but the Board of Al- | which period, if the Court will look at the public dermen, to which this proposition was addressed, | history of the State, and the maps of the city, as it thought favorably of it, notwithstanding the re- then existed, they will see that anterior to that monstrances against it, and passed the resolu- Broadway extended, and was actually used and open- tion granting the license. Up to this time, ed as a public street, to Wall street only, and as a if I understand the case—and if I am in road or passage way, used by the inhabitants for error I shall, no doubt, be corrected in the their convenience, through as yet probenly un- reply of the learned counsel on the other side--no- granted lands, as far as what was then called “the thing was heard of but a stern and determined oppo- Fields,” being now denominated “the Park.” In sition to the whole measure, as being one that ought that charter, at pages 14 and 15, the Court will zee, | net to be adopted, as well because they deemed it to after various grants of power, property, and privilege, be impracticable, and as well because it would be in- | to the corpération, the following passage, which is jarious to their interests; but seeing that the public a grant of the property itself:— And also all and Bentiment, at least so far as expressed by the public every the streets, lanes, eae and alleys, within rl representatives in the local legislatare of the city, the said city of New York and Manhattan's Island ht otherwise, recourse was had to other expe- | aforesaid, for the public use and service of the said | to defeat the measure, and those expedients | Mayor, Aldermen, and Commonalty of the said city, were offers to undertake the enterprise of construct- | and of the inhabitants of Manhattan's Islandaforesaid, | ing the railroad upon better terms than those whose | and travellers there.” This matter covers the grant | application was then before the Board, and who had, | of the streets themselves—the land, the soil upon those | 0 far, succeeded. Well, if the Court please, these | streets; and I beg the Court to keep in mind that @ffers were before the Board: they had them in con- | whenever I speak of the ownership by the corpora- | sideration, and the report of the committee, which tion of the public streets, it is not in their private | has been read to this Court, shows substantially the | right that they can dispose of them, as they canga ground: — which they went in preferring the ap- | lot of common land. to a third person, for a con- plication betore them, and among those reasons | sideration, but as rublic trust, for the use Rot the least paramount was that of the subsiduary of the citizens at ie, and travellers upon measure to be connected with the principal one, and | the public streets. It is important, as the Court will which, I conceive, was one of its best advantages, readily see, that this legal estate should reside in the namely, that of transverse or collateral communica- corporation of the city as trustees for this purpose, ‘tions by means of the omnibus system. The resolu- for @ variety of reasons; and without sucha seizing on tion, however, went tothe other Board, and there the part of thef public, most manifest evils, and per- fresh offers were made; and, as J understand, the petual difiicuities and disputes would occur, in regard enly one which seems to look like taking the bull to the Soar of the streets, the obstructions in by the horns, and meeting the obiections fairly, them, and the trespasses upon them. by saying, we will undertake this precise measure— ix-Chief Justice Bronson—Ioes this vest the soil? not a mere general offer to build the road, withont Ex-Chief Justice Jones—I have stated it, sir, so ing terms and conditions, but we will doit— strongly that itis impossible for the Court to have Tam correctly informed, never came before the misunderstood me. We claim the legal estate in Common Council at all. But the measure was before _ the city, as trustees, for the common benefit of the the Assistant Aldermen. It was the last hope, the city, to use hose streets as public streets. That is last effort to defeat a measure which they saw the what we claim, and not that we have a right to dis- public had called for, and which a few individuals pose of them aa we please. Now, what is the pro- |. The Asaistanta adopted it, 2nd the resolu. position upon this particular point upon the other was presented tothe Mayor. The Mayor, now- side? Their complaint sets out with the allegation ever, differed in opinion from the two Boarils of the | that this isan ancient city, and that the streets, as | Common Counci!, a difference no doubt honestly ' understand it, were used, laid down, and so forth, entertained by him, and he sent back the resolutions by the owners of the ground over which they pass, with his objections to them,and in these objections he and that the city carries its origin up to some 150 does lay stress upon these offers. It was right, ifthe years, I believe; but I think some addition might Mayor thought the Common Council had not given lave been made, that it goes beyond that, for it was it fall consideration, for him to send it back, inorder formed. probably, about the year 1614 or 1615, accord- ing to the history given of it by those who have at- tended to the subject. Then the position is, that Broadway was originally opened and laid out by the owners of property for their own. convenience and accommodation, and that they have suffered it to be used by others until it has become a property, or by what has been in modern times called by & name that has come into very familiar use, namely, “dedication.” Well, sir, as regards this portion of the street that was opened at this time, is this position, in any respect, true? Of course, if the Court please, actual proof of the mode and manner in which Broadway was constructed, formed and opened, at this day, hy oral testimony, is entirely ont of the question, for no human recollec- tion can pos#tbly reach back to the petiod when it took place, because human life has not that endur- ance. We can only ascertain the fact, so far as it is to be ascertained at ull, from the records that ex- sted at that time. and from written testimony con temporaneously. Now, inregard to all that part of the city lying south of Wall street, and which took its name, | bly, from an outer wall of the city pass: ing trough it, through the church grounds, probably from river to river—for, indeed, at that time the eni- ankment upon the North river at that spot was such that it only required to go the length of the churchyard to come to the river itself, or at least the embankment of it, for the west wall of the present churchyard was the margin of the North river, be low which was only a sand beach—the whole of that part of the « ity, and J speuk from the history of the times, was almost exelusively, or at lea great degree, settled by the Dutch, anterior to th conquest by the Engli-h. It is perfectly well known that the Dutch, by their system of civil laws, to bh we have referred the Court, held that the legal title of the public streets resided in the publie-in the overnment—and it was pro: baby so understood by Governor Dongan when be granted this charter.” It will be remembered that | hy the first tranefer, whether by conquest or other- wise—we do not like, in our day, to admit that the that they might have further time to deliberate more fally upon its adoption. They persevered, however but, in the meantime, before the final action is had, an application is made to a co-ordinate tribunal of the judiciary for an injunction; and in terms this injune tion, which was granted by the judge to whom the application was made, is what? Why sir, forbidding Mayor, Aldermen, and Commonalty—the corpo- ration—not the two Boards, not the Aldermen aud Assistant Aldermen, not the individuals who were to act in those two Bourds, but the corporation, from making the grant, as the injunction calls it, of this railroad to Jacob Sharp and others, and inst in any way authorizing the construction of such a railroad in Broadway, or digging up the soil, &ec. Now, ifthe Court please, in this connection I will obse: t it struck the advisers of the Assist- ant Aldermen and the ag ar to whom these questions were submitted, that that injunction never was, and never could be, intended to forbid and re strain those Aldermen from casting their yotes upon the question before them, that being, in their judg- ment, most emphatically a legislative act, and which we did hold, and until fully advised by a judgment of last resort in this case, and | for one never shall concede that any branch of the judiciary can inter- fere, upon any pretext whatever, with the local legis- lation of the vity of New York, ) 0 consider: ed. Thatquestion being pnt to me, and exercising my feeble judgment upon the subject, | said— cannot be intended to restrain the legislatiy of the Common Council, vat, if it m means to restrain their agents from carrying fect any act that may be adopted hose objects.” It was enough to justify, in my jndgment the opinion that | then entertained, to take that ground simply; but I do not hesitate to “ay that there were those who took stil] stronger ground, and who waid that if this was intended to restrain the ac tion of the corporation, so far as it forbade the two Boards to act and yole upon the subject, it wax still going beyond the jurisdiction of the Cov and, consequently, inoperative. This injanction werved wu the two Boards, and I a ahort | colmy, even thongh it were a Dutch colony, was ac- view of the proceedings, simply because it is made tvully conquered—the sovereignty pasaed in some one of the grounds on the present application upon | Way trom the Dutch government to the then Duke of which this Court is asked to interfere by its injunc York, who had, ander the royal grants of his brother tion. Each of the Boards, however, conaidering that | Charles. obtained royal patents for the whole of what junction a8 not restraining them from acting and ring from his Honor the Mayor, as to the expe diency of the measure, repassed the resolution, and by virtue of the amended charter of the city, it be a: came a law of the local jurisdiction of the city of | tain, sir, it than extended to what is now called New York. It will not be necessary for me, and it | Wall street; that is to say, the city extended no fur. would perhaps be improper for me, to say one word | ther, and it was but partially settled even to that as to the ulterior consequences of that act, in respect | point. to the Court who granted that injunction. It has | Judge Strong—There was no regular laying ont pape hea what should be done upon that occa- | then, before that time ¢ sion is with them, and rests upon their responaibitity, Ex-Chief Jastice Jones—There is no actual record and isa matter with which this Court, as | appre- | of laying out, ao far as we have discovered. There is now the States of New Jersey and New York. Jndge strong—At that time how far was Broud’ | way laid out? ox-Chief Justice Jones As far as we can aécer. hend, has no concern. After, however, this resolution is no actual record now existing, showing the precixe hhad been finally passed by the two Boards, and waa | mode and manner in which the street wa+ tontinaed accepted by the grantees of the license, the bill now | from Wall street up to what is now the Hospital before this Courtavas filed, calling upon this Court to | grounds, but beyond that we have ample records, restrain this company from proceeding to carry into Judge Strong—-[s there any record of any road to effect that resolution. The xrounds taken by the bill, | the upper part of the city / ‘ as the foundation upon which they rest their claim Ex-Chiet Justice Jones—No, sir; bat all the maps to the interference of the Court are many; but | would seem to indicate that there was a road of some ehiefly they rely, as [ apprehend, upon two or | kind extending from about Wall street to the Fields, three inent entertained and put be- | which was a very long distance, and probably it of bill. | was owing to the reason that the old Dutch settlers fore Court by the framers And the firm is, that the property—the legal estate— | at that time, according to the history of the day, bad present not being in existence you cannot say that it | , charter was | dest their flocks pastured in the public grounds. These were all public grounds at that time, and have ever since remained 60, and of course there would be roads of some kind from the lower of the city to these pasture grounds. Probably that was the only spee'es of road that then existed. Not long subsequent to this period there must have been a public bighway from thas place, at least to the public grounds, because the grea aged of communicatic was through the Bowery, extend grounds, and over part of them, through what at a vineyard, and so extending up Chatham street, through the Bowery, and thence by a devious course to Kingsbridge, at the upper end of the island. That was the only ingress from the country to the city of New York until the Revol tionary war. Broadway stopped altogether at about the hospital, and was not continued until somewhere about the Revolution, and, according to myimpression, not until shortly afterwards. Well, then, if the Court please, all that these gentlemen say as to their title to this road is in their complaint. that the public—that they were the owners of it to the middle of the street. ‘They state expressly their ownership in fee of the lands fronting upon the street ; but when they come to speak of the land within the street then they only soe of their ‘belief,’ and they show upon what that belief is founded, both in their Coenen as | understand it, and certainly in their argument, by contending that, upon the faith of certain deci- sions made in the courts of this State, a lot bounded upon the public highway is carried to the middle of the street. But how far that idea has a foundation in the strict rules of common law might be questionable, but it is not either our purpose nor of any use to us in this argament to agitate the question. These, however, are the sole foundations upon which they rest their claim to that ownership and that title. Now, on the part of the defendants, in the first place they Slime to the chaiter of Dongan, an extract of which | have read to the Court, and to the ¢harter of Montgomerie, which is a confirmation of all the rights, &c., which were granted by the previous charter. Now, then, if it be true that under the Dutch laws, which pre- vailed unquestionably at the time that part of Broad- way was created, this legal estate in Broadway, as well as in all the other streets that had been laid out, no matter by whom they were laid out, resided in the Governor, and were transferred by that charter to the corporation, upon the trust that I have mentioned, how was it as to the parts of Broudway beyond that? Now, upon that pain we have several ancient records, which certainly speak pretty strong language, and the first is a patent, granted in 1700, or 1701 or 1702, by the then Gover- nor of the province of New York, to Trinity Church, which commenced below Wall street, and extended to about a hundred feet to the south, and the build- ing recently built upon the corner of Thames street was at a distance of ubout four hundred feet, that is, fQeunded upon the Broudway, showing that Broad: ay existed at that time. At that day the inter- yening property, from the church ground to the house that I have spoken of, was the public burying ground of the city, and bounded also upon Broadway ; and in 1703 that public burying ground was trans- ferred to Trinity Church by the corporation, as a part of the burying ground. Now, it never has been contended, I think, nor never could be contended, that the government, when they made those grants, if the sessed even any property in Broadway, ssed that property to the church or burying ground. roadway was then a public street. Well, then, be- yond that there occurs a space, from Thames street up to Dey street, as to which there is no record that I have seen anywhere, indicating how that property assed from the government to the proprietors ; but om Fulton street, all the way up as high as was then called the Meadow, composed what was called the King’s or Duke's Farm, and was, also, by Corn- berry, in the reign of Queen Anne, conveyed to Trinity Church, first by lease, and afterwards by what we have supposed to have been deed, and that grant, whatever it be, bounds the property npon the public grounds upon the “ Commons,” as it is called in the nt, andj the Meadow. Now, beyond all doubt, corporation of the city, and the opening, beyond all question, was by cession of the owners. First, it could come into existence in no other way; and, secondly, because there existed an act of the Legisla- ture, I think it was, at the time, that there could be or exist no public street within the city of New York unless by the actual consent of the corporation. This was in pursuance of the policy that has ruled in the councils of the city of New York, and of the State, from the time of its foundation’ to the present day, that the legal estate in the streets aaa vested in the corporation, in order to enable them to carry into effect and execute the trust residing in them. And this brings me to that part of the case to call to the notice of the Court what follows in the original char- ter. After the grant, to which I have directed the attention of the Court, of the legal estate in the streets that then existed, Governor Dongan’s representatives o on to confer upon the corporation powers as to ture streets, and which, it seems to me, are very emphatic ; and, if 1 mistake not, the law arising upon them, and interpreting them, is, that it gave to ie corporation whatever streets were laid out, the terest in them, let them be laid out by whom they would but the corporation—that is, I mean, a3 a ponte trust. It may be,andI do net stop here to inquire, though presently I shall avert to that more particularly—it may be that there may exist, in some of the streets which have not been conceded in ancient times, a possibility of a revertor, in case, by any unforseen and certainly unexpected calamity | or event, this great metropolis should cease to he a city, and again be converted into pasture grounds. | This ix the only coutingency with which any pro- prietor, in the view we take, can ever assert a right of any sort in these streets. The charter says, “with full power, license, and authority to the said Mayor, Aldermen, and Commonalty, and their suc- cessors for ever to establish, appoint, order, and direct the establishing, making, laying out, ordering, maintaining and repairing ali e streets, lanes, alleys, highways, water courses, ferries, and bridges, in and through the eaid city of New York and Man- hattan Island aforesaid, necessary, needful, and con- venient for the inhabitants of the said city and Man- hattan Island aforesaid, and for all travellers and passengers there.” And, as the Court will see, this is a full power unqualified in the city government—the city legislature—-becau-e these powers are given to the Common Council to lay out, establish, order. and direct all streets in all future time. Now, Mont- gomerie, in his charter, follows up that idea. In the interval between 1686, when the first granted, and 1730, when tie charter of Montgomerie was granted, nearly half a century had elapsed; and during that time probably Broadway—and, indeed, we Know, from a reference to the history of the times, and maps of the city—had then extended itself as far as to about the hospital, and that building itself grew up and was established within about twenty-five years subse- quent, I think, to that period. At this time the power given by the Montgomerie churter is this, and it he- gins upon page 99, section 16 nd we do further for us, our heirs and snecessors, give, gfant, ratify and confirm, unto the said Mayor, Aldermen, and Com- monalty of the city of New York, and their suoceasors forever.” Now, [ cull your attention to the fact, to what body were these powers given—To the May- or, Alderinen, and Commonatty of the city of New York, and their successors forever, that the Common Conucil of suid city” &e. Now, who compose the Common Council’ “Why, the Mayor, Aldermen, and Assistant Aldermen, all sitting in one body, Mayor laying no other distinct or distinctive privi- ley existence in that corporation than simply the presiding officer, and that is not given him expresely by this charter, forhe is only there consid- ered as one of the Common Council, and, as a matter of course, not always presiding. But it waa the Com- mon Couneil. There was nothing like the distine- tine tion that you find in some of the private corpora- tions, of two or thr istinct heads, or organs, the Hs body. This does not enter into the charter at and the death of the Mayor would no more terminate it than the death of uny one of the Aldermen. It is given to this Common Counc for the time being, or the that time there existed in this sity seven wards only; consequently the Common Council, when they as sembled, consisted of foarteen persons, and the Mayor; and if, therefore, the eight Aldermen and Assistant Aldermen—hecause there was no distinction between them——concurred in any measure, let the Mayor's , ond their snecessors jor partof them. At opinion be what it Would, that measnre ’ was adopted and became a by-law, or a resolution, or an ordinance, whatever it purported to be. It was given to them to “Have, aul from time to time, and at all times hereafter, forever, full power, license sud authority, not only to establish, appoint, order, snd direct, the making and laying out of all other strects, lanes, alleys, highways, water courses and es, not already made or Jaid out, bat also the janes, alleys, highways, water courses and bridges heretofore made or laid ont, or hereafter te be made om laid out, in and throughout the said city of New nd the island of Manhattan, in such manner dCommen Council for the time being, or jor part of them, shall fhink or judge to he i ry and conyenient for all inhabitants and tra- vellers there.” This is a full conflymation of the vious grant, and a reiteration of it??cranting to the Common Council of the city of New York, or the major part of them. Now, if the Court please, I say that these grants, in my view of them, conferred upon the Common power to | should jade fit aad conyenient, and when they were laid out, vested the legal title in them—the corpo- tution. Now, the question as to their right to enter pean porate lands, and take those lands from an individua the inquiry; and I think if the Court will examine the documenta before them whi Mr. Hoffman, with #@ much care and attention, collected and the form, for the use of this Court, they will see that question was agitated over and over again in the colonial government, and that there were acta pond apd measure constantly taken to extinguish ing along the public | that time was called Chatham road, then occupied as | ral Ereadway was taken from grounds pelonring to the | streets themselves, and nobody could have an in- | iction of one of which would destroy the whole | ring, mending and repairing of all such streets, | ncil of the city of New York the | out these streets and roads as they | and convert them into streets without | of the city have been su; making compensation, that formsa distinct branch of | of the Croton water, an! those private rights for passage over the ponds: which were cenverted into streets. and that an act existed, which he refers to, ander which the right of soil far the purpose of streets could be obtained upon making proper compensation; and he gives various instances, by which it appeas, from the records now existing of those times, where application was made | for, and Sag given to, individuals for those purposes. Supposing, therefore, the grounds to make the streets to be acquired by the corporation, and the streets established, either by cessions of the individuals, or by purchase, or, if you please, by the | operation of a “ dedication,” that is, the owner of the property forming the street, and opening it in | any of these ways, it seems to me that the title | to’ the property necessarily vested in the cor- | poration of the ‘city—the legal estate—for all the | purpores of the trust for which this street was open- ed and created. What is the meaning, and what is | the legal sense, of a power to “ order, establish, and direct/"’ My associate counsel has referred to the constitution of the United States for an explanation of the term “establish,” and for an explanation of the term “regulate,” which is equivalent to order and appoint—in both cases it being interpreted to mean, that the whole subject, the whole power over it, and the right and interest in it, is vested in the body who has this power. To be sure,a paramount law steps in there, according to our modern conceptions of. the very highest obligations, and no doubt respected in that day, that private property could not be taken without compensation to the parties injured; and hence we are to conclude and infer, that wherever streets were laid out, and placed thus under the con- 4rol and in the power of the corporation, that that revious condition was complied with, and that all jose streets, wherever compensation was rejuireds and wherever the owners did not voluntarily and gratuitously concede the ground necessary for the street to the public, that they received a proper equi- valent for the property taken for that purpose. This might leave, it 1s true, in the original owners this possi- blecontingent rightthat I have spoken of—this residu- interest—which, in alate case, the SupremeCourt, and I believe the Court of Errors, have both decided to bemerely nominal, with still a reverting interest that if the street ceased altogether to be a street that then the ground itself might revert to the origi- nal owners. It bas been contended that a party making a cession for such a purpose reserves that right; but that is all the righthe reserves; for he re- serves no power during the time that the strect con- tinues—no interest, no right and no control over it, It would be incompatible with the ‘ dedication” that he should have any other right. I would ask the Court, what would he the condition of this great city, if every individual was vested with the power of bringing actions of trespass and ejectment for every interruption or obstraction pieced in the city opposite to his dwelling? The right to institute suc! | actions was never contended for; but, on the contra- ry, all obstructions to the streets, and all intrusions upon them, have always been redressed, prevented, and punished, by actions in the name of the Corpora- tion, or departments to which that particular subject was referred; and upon the same idea that these streets were vested in the public the act of ‘93 of the State was passed, conferring upon the Corporation all the right that the State might have as being the great public, in any part of the streets of the city of New York; and when the public— the Legislature—came to devise a system for laying out all that part of the city into streets and avenues which then only existed in fields, the same policy was pursued; and a system was established in the first place for the laying out of the streets, and that was accomplished under the act of 1807; and subse- quently to that act the general law establishing the mode and system tor opening the streets thus estab- lished bras previous act, and in both those acts, having distinctly in view the placing of streets, thus | to be formed and laid out in the corporation, the ow- | ners were to be paid for the land taken to form those strects, themselves contributing, however, their just Propereon by means of assessment. And that, sir, think, puts an entire end to all questions about the title to the streets in all that part of Broadway which | lies tothe north, I think, of Fourth street. The whole of Broadway, to the north of Fourth street, | with the exception of that part of it between Fourth and, I think, about Eighth street, formerly Arch street, has been opened by the system to which [ have referred, and the title of course vested in the | corporation. All of Broadway that has been opened beyond Arch street, between the present Eighth and | Foarth streets, must have been opened under the new arrangement. Between Fourth and Eighth streets, Broadway has existed as an open street, the ground | through which it then ran having been seized to the | then owners, I believe, without the least doubt, tothe | corporation, forthe purpose. Well, if the Court please, in corroboration of those views as to the ownership | or the art | the residence of the legal title to the | | grounds within this street, let us look to the uses | | that have been made of it from time immemorial. Has any owner of any !ot fronting upon Broadway, | or, I may say, upon any other strect in this city, | ever pretended to claim or exert any ownership or | any exercise of any of superior title to the | grounds within Broadway, or within any street of | this city? Such a thing is unheard of. For who | have exercised these powers? The Common Council of the city of New York, from the foundation of the ) city to the present hour. Anterior tothe aocpHen of the recent systems in this city for supplying It with water and for extinguishing fires, it was the habitual | practice of the Common Council to establish in all | parts of the city, and in Broadway among the rest, | wherever they deemed it necessary or convenient, | wellsand pumps. You found a pump at every third or fourth corner. Who put those pumps there? The corporation. Some of them were public pumps, which the citizens had no right to ap- nae for the purpose of taking the water ‘ause they were the public pumps for the use of the fire department of that day. Some of them were established for the use and convenience of the ci yens, and, in many instances, the Court will find they think it necessary, by looking at the records of the city, the Srpleseons of neighborhoods to the Common Council to establish a pump at such a place for their convenience, directly in the street, and gene- | rally near the side walk, but in point of fact upon a portion of what was then the curb way. The pum in front of the old City Hail, it will be remembered, | was famous for its fine water, and stood there | for a long series of years, even after the Man- hattan Company undertook to supply this city | with pure and wholesome water. ‘ot only did | the corporation do this, but for the use of the | | fire department they erected engine houses, built upon the very streets, for the accommodation of the naga tees used in extingnishing fires. To be sure, ney, 1 cae them in such positions in those streets that they did not interfere with the public traveller. They did not place them in the centre or in an incon- yenient place, but still they were within the bounds | of the streets and the streets were used for that pur- | pore. Again, the system of vaults for the use of pri- | vate houses bed its origin even in those days, though | | not to the same extent that has since come into use, | | | | | | and every one of those vaults, according to the doctrine | upon the other side, would be an encroachment upon the private property of the individual; and in eve instance in which an individual applied for a vault, he applied to a power that had no right to license it, and ie himself would have had full power to have | gone and undermined the street and created a vault on his own account. It is said that he could not | break the Sable hecause the public have the use of the suriace, and the regulation of the surface of | the street; but the owner, if he were the owner of the strect, baving obtained permission to remove the pavement, would possess the right to everything | underneath, and could make a vault upon his own | ground, without any license or permission from the | | corporation. Word that be tolerated? What sort of system should we haye in this ¢ ty if every person could go on and make a vault as deep as be pleased, or as wide as he pleased, extending to the centre of | the ” Where would be the gasnipes to be laid down? Where would be your pipes for Croton water, in all directions of the city? Why, all would be broken up by this assertion’ of private right to all | parts of the street, from the centre of the earty to | the surface, save only the surface itself. A still more | signal instance of the exercise by the Common Council | of the ownership over these streets existed in plac- | ing the position of their public markets. In those | days, traces of which remain to the present hour, and | many of which were extant even within my recollec- tion, the markets were placed in the Mag Reeth of | the street; but these markets, most of them, have disappeared, and others sprung up in their place. The charter vests in the corporation the power of making markets, when and where they please and in | the exercise of that power, they placed them in the | streets. Could they do that if they did not own those | streets? They took care to leave upon each side of | the market what they deemed sufficient accommoda- tion for the public as streets, and ibly in many | instances, that space was regulated at that time by the old Dutch notion of having streets a little narrow- | er even than narrow Broadway, and not 80 wide a space as our English race have deemed to be neces- sary and gat Among these markets was what was called Fly Market, a place directly in the centre | of the street, formed by the junction of Maiden lane and Liberty street, then known as Crown street, and | a still moré notorions instance was that of the old. | Oswego market, which was situate directly in the centre of Broadway, between Crown street and | Cortlandt street. “There stood the Oswego | market, about the time of the Revolation, | in the centre of the street. These are acts | Which the Court will only have to turn to the tpeords and hi of the city to find detailed at length. That market was, upon a petition of the in- habitants, removed, first into the upper part of Maiden lane,not in the street itaelf, then, but upon a lot of ground purehased for the Bs we, and was after- wards carried down to the North river, and became what is now called Washington Market. These uses rseded by the introduction by the mee extended room | required for the purposes of mafwets than then ex- | isted. It has now become too inconvenient to have a | market in the centre of the street, and they have | fenerally, almost, Sniverneny been placed in lots ad- foining i ; and even now, I find, an ay ee Will take the trouble will flad also, that a portion of Clinton Market, at the fogt of Canal street, encroach: es In some degree, under those ideas, on what other- wise would be part of the public street, But in modern times this use has been continued. Now the pipes are laid under the surface of your streets in all directions; one system for distributing water, and the other for distributing gas, and one of these is laid by the public itself, and the other by companies orga- nixed for the purpose, and acting under license from the corporation. So, too, what is more common than for every building that comes up to make application to the ‘corporation for permission to use a certain ortion of the street daring time that the Building is in course of erection; and this is uniformly granted, by license from the Com- mon Council, to those who apply for it. Was it ever heard of that individual citizens had the j right, under the circumstances, to institute suits for | what they chose to call Rea! from these neces- | sary operations upon the public streets? So, again, under the late system of rapid communication trom place to place, you have the telegraph and its poles | standing in every direction,all over the city, directly in the streets. By whose authority do they stand there? By that of the corporation. Can any indi- vidual,opposite to whose door one of these telegraph poles should be placed by the authority of the Com- mon Council, order it to be cut down because it is a thing not within the scope of the uses to which the | streets were to be applied? Under the idea of nuis- | ance, if any of these things become a nuisance, then | the citizenrhas Lis remedy, either by his private suit | or by an interposition of the public authority through the Attorney General. But the Court will find if they will examine this question of nuisance that the books hold that the public streets or public highways are used by the public authorities for such pw 3 ut these, and in some cases by private individuals, | andif there is no such obstruction of the regular and | legitimate use of the street as amounts to a nuisance, | they cannot be invaded by a private individual. Now | it seems to me, that under these views of the subject, | itis impossible to resist the conclusion, that in some of | the views indicated by Mr. Hoffman, in his affidavit before this Court, and who has given untiring atten- | tion to the subject, and who has been many years | snaaged in investigating it and collecting testimony and facts to support the opinions he affirms, that the | whole legal estate in every part of Broadway has, in | some of these ways, become vested in the corpora- | tion of the city of New York, as trustees for the publie of the streets of the city, and that upon no | other theory can we sustain the corporation in the | uninterrupted use of these streets, for all these pur- poses, for nearly two centuries. Inno other way | could the Common Council properly, effectually and | efficiently, carry out the trust upon which these streets are vested in them, or put undertheir control. | Is not the whole regulation and government of the | streets vested inthe corporation? Do they not hold | the power, given them by the charter, to direct, | order, and control these streets, exclusive of any other power? In addition to the power granted in the charter itself—which I have always supposed, and which Judge Kent in his notes plainly intimates was | in itself sufficient to invest the corporation with all the power necessary tor the government, control | and maintainance of these streets, for greater caution—this corporation has repeatedly ap- | plied to the Legislature, and they have armed them with additional and express authority in | various points, and, among others, that of authoriz- ing and licensing hackney coaches. I believe that is | found under the 272d section of the act for reducing | the laws of the city of New York into one act. The Court will see by this that the Legislature conferred | these powers: upon the CommonCouncil and legislature | of the city, in these cases, to regulate hackney coaches, | or carriages, and the owners and drivers thereof, &c. There are various other powers granted to the cor- poration by different acts of the Legislature. I refer to that paeecary because it is one of the authori- ties under which, the Court will perceive, the act which has been done in the present instance, and which is complained of, will properl arrange itself. I refer the Court now, upon this whole subject of the meaning of these sections of the two charters, and of the act of the Legislature supplemental to them, to the comments of Chancellor Kent upon the subject. It will be found in this volume, at page 236, and is a note on the section in the Montgomerie charter mak- ing a grant of the powerto control and manage these streets to the Common Couneil. He says— “ This is a grant of a public nature, without any pri- | vate interest, or property, or revenue, connected with it, and it has always continued with the Com- mon Council, under free and active exercise— subject, nevertheless, at all times, to legislative inter- ference and direction. The Legislature interferes with the power, in their discretion, and J think there can be no question as to the right of the Legislature to do so, for the power is not exclusive in the corpor- ation, nor irrevocable, nor in the nature of the grant of private right.” That is the explanation, if the Court please, of the power of the corporation for which we contend: and it seems to be entirely misunder- stood when we are charged with an attempt to make any grant, or any contract, here, in relation to the substantial interests of this corporation as a corpo- rate body. The Common Council have asserted no claim to make any such infer Se or contract with these parties, or to vest inthem any such inte- rest, and they have made no claim to tie right or possession of any such interest. It isa power which they possess for the benefit of the people. The Com- mon Council, therefore, exert it consistently with le- gislative directions, and in other 'cases, where the statute law is silent—that is, in all cases wherever | it becomes necessary to exert any power over the public streets, that may be exerted consistently with the nature of the franchise itself, the use and pe ' pose for which the street is intended, for which it | was purchased by the public, or conceded by the | individual—there the corporation, though the statute may give them no power, has a right from the char- ter itself—from the broad and expansive power—to order and direct the use and management of these | streets, and to do with them what the public inte- rest, in their judgment, may require. They cannot divert them from the purpose for which they were intended. ‘They cannot sell them to individuals in fee simple. They cannot erect dwelling houses upon | them, from which they are to derive rent; but they | can order and direct them for any purpose, or any use which shall tend to the benefit and advantage of the city, which is not incompatible to the use of them for the travelling and common purposes of the citizens. These are the powers they possess—these are the powers we contend for, and those are the only powers which the Common Council attempt to exercise here. Chancellor Kent goes on to say — ‘The statute laws are not intended to alter or control (except in the given eases) the charter on the points, but the object is generally to give additional specific and subsiduary relief, and the corporation have frequently applied for legislative authority, and have preferred to exercise the power under that sanction, though the gene- ral terms of the charter gave it to them. And further he says — The statute powers have become so ample, so various, and so full of direction, that the charter power seems to be in a great measure absorbed and lost in the new | statute powers; but whenever and wherever the statute | provisions do not supply precise and adequate authority inthe given instance, the Common Council can always resort to the never failing powers under the charter, which gives broad and large authority commensurate to every case. thi | These, if the Court please, constitute the authori- | 1 ties under which this Common Council has acted in | giving the license that this resolution purports to give—a permission to this company, to Jacob Sharp and others, to lay these railsin Broadway. Has not, | if the Court please, the exercise of these powers been recognized and sanctioned by the courts Relic of the State, and by this very Court, in many instances? What has this resolution done? We will refer iv the resolution itself, which is annexed to the com- plaint:— P'Renoived, That Jacob Sharp and others, and those who may for the time being be associated with them, all of whom are herein designated as associates of the Broadway | Railway, have the authority and consent of the Common | Council io lay a double track for a railway in Broadway | and Whitehall or State street, from the South ferry to Fifty ninth street; and algo, hereafter, to continue the same, {rom time to time, along the Bloomingdale road to Manhattanville, which continuation they shall be xe- quired, from time to time, to make whenever directed by the Common Council, the said grant of permission and authority being upon and with the following conditions and stipulations, And then follow the stipulations. The grantthen, if the Court please, isin substance aud effect nothing more than the oonsent of the corporation to these persons to lay that double track of rails in Broad- | way between the points designated. It is in its very | terms, and in its nature, a license merely. And it is a license for what? It is a license to them to ei a railroad in a public street for the purpose of enabling the cars to puss along upon that railroad, for the carriage of passengers between one part of the city | and another. Now what, then, is this license or pri- vilege ? Why, if the Court please, as I view it, it is a legislative local act of the city of New a authorizing the nse of carriages for the carriage o! passengers, usually termed and denominated cars, in the same way that that street is used, or was before used, and still continnes to be used, for the carriage of passengers in carriages or omnibuses. : Jeane Strong—-Can it be revoked after laying down the rails? ‘ ED.) (ro BE Co» Theatrical and Must cal. ‘ Bowery Turatre.—This establishment is pr greasing every week, under the able management of | Messrs. Waldron and Stevens, who are so well and favorably known to the dramatic public. The selec- tions for this evening are the operatic drama of the “Bohemian Girl,” which wall be followed by “Timour, the Tartar.” The recerpts of the evening are for the benefit of Mr. Derr, whose equestrian feats in “Putnam,” and other | pee have always been wit- nessed with surprise, followed by enthusiastic cheers. Broapway Turarne-—Mr. Forrest, the distin- ished American tragedian, who may be said to have now the American stage to himself, so far as tragic performances are concerned, will appear to- night in his great character of Rolla, Mr. Conway as Pizarro, Mr. Pope as Alonzo, Madame Ponisi as Cora, and Mrs. Abbott as Elvira. The entertain- ments to conclude with the “Two Bonnycastles. Nisto's Garpen—The distinguished vocalist, Mademe Henrietta Sontag, whose vocal abilities are * Susan Cooy so much admired by all musical deletanti of ,this city, will appear to- it in the beautiful opera of “Linda di Chamounix,” assisted by the best talent. It is unnecessary to say those who visit Niblo’s to- night will receive a rich musical treat, and will be eompelled, as they have been during her engage- ment, to give warm expressions of their admiration of superior talent. Burron’s Tusarre.—The manager of this pros- perous theatre announces, as usual, a bill of enter- tinment which cannot fuil to crowd the house. The | favorite piece of “Paris and London,” #0 much ad- | mired as a s; sa splendid comedy, but more so as regards the artists who ‘properly delineate the respective cheno oe on misses Will be the first feature, a e fol i 4 Cacti teams lowed by two pieces of very at- Narionan Ta EaTRE.—Purdy, the active and ener- getic manager of this establishment, announces an | entertainment which cannot fail to draw a large au- dience. The light and pleasing selections of drama- tic performances which are every night given by the manager, are the sources from ‘which fis treasury receive substantial proofs of his successful catering. To-night the amusements consist of the “Six Degrees and Clarke’s successful drama of “O'Neil rime,” 's Tuxarre—Where can one wile away an evening with more uamixed pleasure than within the precincts of this ably conducted Temple of Thespis? The elections are always of a cl ter which cannot fail to please, and the artists engaged by Mr. Wallack are, to say the least of them, no wa; inferior to any in the Union. The fine comedy of “The Rivals’” will commence the performances, and | they will conclude with “First Come, First Served.” American Musevu.—The successful new comic drama, styled the “Old Folks at Home,” is to be re- peated this evening, with the same excellent cast; and the laughable farces entitled the “Dancing Barber,” and “One Thousand Milliners Wanted,” will be given in the afternoon. Crrcus.—A great array of attractions will be pre- sented at the Amphitheatre to-night, including eques- trian and gymnastic feats, in which the full strength of the excellent troupe will appear. The whole will conclude with the spectacle of “St. George and the Dragon.” Cunisty’s Orera’ Hovse.—Christy’s Minstrels continue uninterrupted in their career of success. They offer a highly attractive programme for this evening. Woon's MInstreLs advertise a repetition of last night’s bill, it having crowded the ball to overflow- ing. The lecture on ‘Woman’s Rights,” and the ‘Arab Brothers,” are included.” Baxvarb's PANORAMA OF THE Hoxy Lanp will be exhibited aguin this evening, at the Georama, Broadway. Ristry’s Tuames is attracting crowded assem- blages at 406 Broadway. Mux. Vaventin1 will give another of her popular concerts to-night, at Hope Chapel, Broadway. A. visit to the concert room will amply repay the vota- ries of music. Rosert Hkuuer, the renowned magician, an- nounees another good programme for this evening. Baxu’s Move. or San Francisco has become quite a popular exhibition. Every one should see it. Miss Kimberly, the celebrated actress, has arrived in town on her way to Richmond, to play an engage- ment, and is stopping at the St. Nicholas. Coroners’ Inquests. Tar BurninG Case in Firry-NintH Srrget.—Coroner Hilton held an inquest, at the City Hospital, yesterday, | upon the body of Charles McFeely, who died from dread- tul borns which he received on Tuesday afternoon, in Fifty-ninth street, as reported in our paper. The cir- cumstances connected with the unfortunate accident will be collected from the following testimony: Henry Hallmaughn sworn—I reside at No. 451 Wash- re street; I am foreman in the iron foundry of Rider & Ward, in Fifty-ninth street; I knew the deceased, Chas. MecFeely; he was employed as a laborer in the same foundry; between the hours of one and two o’clock, on Tuesday last, we were casting an iron column for a sugar house; the deceased was employed in holding the rack chain of the orane which raises up the melted metal pre- vious to its being doposited in the mould; we had poured in about seven hundred pounds of metal, when it choked the bottom of the core and prevented the air fram es- caping through it; the confined gas caused an explosion, which burst the metal through the flask and scattered it around; the hot metal was thrown over deceased, set his clothing on fire, and burned him about the head and chest; when his clothes were on fire, he ran from the shop inte the yard, and received the most of his burns in this way; his dress was burned completely off before any as- sistance could be rendered to him; he was immediately sent to the hospital. Several witnesses, who were employéd in the foundry, and were working close by the deceased at the time of the accident, corroborated this testimony. One of them, named Felix Larkin, had a yery narrow escape, having been burned upon the face himself. Surgeon Suckley deposed to the admission of the de- ceased te the hospital, and as tothe severe and exten- sive burns upon bis body and extremities, which caused his death. The jury rerdered a verdict of ‘death from burns, caused by the accidental explosion of hot iron from « casting, in the foundry ef Rider & Ward.” The deceased was a native of Ireland, and heats aia of age. He leaves a wife and family to lament his un- timely end, Drarn From VIOLENCE IN Reape Srreet.—The same Coro- ner held an bet iri immediately afterwards, at the Hospital, w e body of Anne Donnelly, who came to her death from a fracture of one of her legs, which she received when defending herself from a rowdy assault im Reade street, upon the 6th inst. The following testimony was taken:— John T. Smith sworn—I am a policeman of the Fifth ward: about 6 o'clock on the morning of the 6th of this month I was on duty in Reade street; I heard s groaning inan alley way near Church street; I went there, found the deceased in a sitting position, about twenty feet from its entrance; one of her legs was broken; there was a pile of boards near to her, some of which appeared to have fallen down upon her; deceased appeared to me to be about 30 years of age; I asked her if “‘any,person had been in there with hery”’ and she replied, “No,” I had her con- veyed to the Mospital; she said that she had no friends in the city, but that she resided at No. 10 Roosevelt street. Matilda Goodwin sworn—I am a nurse in the New York Hospital; deceased was taken into the ward I have charge of; when she came in she stated that a “rowdy” met her when passing through Duane street, and wanted her to go drink; that she would not go, and he dragged her into @ wood yard; that in a struggle there the wood fell down and broke her leg; she was perfectly sober at the time; she said that the man then ran away, and that she called ‘Wateh,”’ when a watchman came; she also stated that before he came, she had got the ‘wood off her leg, and made it worse by endeavoring to stand upon it; she would exclaim frequently during her illness, ‘Oh, the villain;”? she did not give a clear account of why she was out at that time in the morning. r deposed as to the admission of the de- ceased, the injury, amputation of the limb, and her de- cease.’ The jury rendered a verdict of death from a frac- , ture of the leg from the falling of a pile of lumber ip Reade street, the effect of struggling to rid herself front the assault of a man tothe jury unknown, The deceased was about thirty years of age, and a native of Ireland. Svppxx Deatt.—Coroner Wilhelm, held an inquest last evening, at the house No. 132 Orchard street, upon the hody of Agnes Bowman, an old lady, who died there sud- denly about noen. After hearing ‘the testimony of her husband and the medical evidence of Doctor Ubl, the ary rendered a verdict of death from disease of the heart. deceased was a native of Scotland, and about fifty- cight years of age. ‘A ian named Tietchen, residing at Twenty-ninth street and Ninth avenue, dropped dead yesterday, Coro- ner Wilhelm will hold an inquest to-day, The Art Union Case. ANOTHER OPINION OF THE COURT OF APPEALS. The People against the American Art Union. RuGGies, Chief Judge, delivered the opinion of the Court. By the 30th section of the act against rafiing and lotteries, (1 R., sec. 666,) itis enacted, “That no person unauthorized by 8) law for that purpose, now existing, shall offer for sale, dis- tribution, or disposition, in any way, any real estate, or any money, goods, chattels, articles, or things in action, or any interest therein, to be determined by lot or ehance, that shall be dependent upon the draw- ing of any authorized or unauthorized lottery, within or out of this State,” &c. By the 31st section: “ All | property so offered for sale, distribution, or disposi- tion, against the provisions of law, shall be forfeited to the people of this State, as well before as after the determination of the chance on which the same waa | dependent,” &c. This action was brought to recover, as forfeited, certain pictures and works of art, alleged to have been offered for distribution in violation of the 30th section, above in part recited. But that section is inapplicable to the present case. It ap- plies only to distributions by lot or chance, dependent, upon the drawing of some lottery over which the parties to the distribution have no control, and which drawing was not originally set on foot for the mrpose of distributing the property claimed as for- Ritea, but for the purpose of disposing of some other property. The scheme for the distribution of the articles in question was originally set on foot and controlled by the parties interested in the articles pro to be distributed, and for the sole purpose of their distribution by lot or chance, The offence, | therefore, is not embraced within the 30th and 31st sections above mentioned. Those sections appear ta have been framed for the purpose of prereng, an evasionof the 27th section, which forbids the drawing of any lottery. If the defendants had made the dis- | tribution of fhe articles in question as prizes, to de- nd on the drawing of some other lottery in or out the State, and by some person or persons other than themselves, they would have incurred the for- feiture for which this action is brought. But such is not the case. They may have incurred the penalty of a pecuniary fine, as prescribed by the 27th section; but thin action is not brought tor that penalty, and it cannot be uraintained for the forfeiture of the pro- perty itself. The judgment of the Supreme Court should he reversed. (A copy.) . H. R. SeupEn, State Reporter. Fornion Consvn.—Henry Ke Kuper has been recognized by the President as Consul of Great Britain for the Stat f Maryland. — Wisconsin, with a sparse and emigrant population, has a school and Va of $850,000, and an sino outla; fig = tay of her children, of ,000 ; 90,000 of her 120,000 el m have at- tended echool during the year.