The New York Herald Newspaper, October 20, 1854, Page 2

E 4 Pid orimins! . Gentlemen, nosgaeiy that yea should be awakened existence of such a class of cases as All cases of slancer do not appear before many years a case bas not been present joints thet are inthis. Afew words {0 the two parties in this action Mr. resident of New York for many years. maintained » good character, and has sinsr teomed by his fellow vitizens. For the time he is now compelled to appear here to defend that character from unjust aspersions, Considering the purity of his Nts, he enabhsfe seneteeipsetettce, rather than those who have not rimflar claims, and who have only songs | out their own selfish ends. The plaiatiff | preeent position, | At the early sae twelve yearn he was jeft self-dependant; he had the whole world before him. He succeeded in elevating himself to © porition of pesuliar incependence, and he could afford to be an honest and upright man. Twice has he been elected to the Board of Arsistant Aldermen, and twice to the Board of aldermen In the fall of 1863 he was elected Senator for the Third district of this city, which office be filled last winte che credit of himself and theiintereat of his cone ut his suceess by his own ple of what any 4merican t clase of men whom we hay provect and cherish. Whe such men are wronged, it seems to -us as if indi; dual evergy aad iategrity were wrongea, Bat there is no charecter which cannot be contaminated by the brosth of malice. No man cap be ktowa to all, ‘There el z5 dl i ee efi EES af iy no man who i# above the corroding influence of a cjous atmosphere. Look at political men who have performed ali their dutios to soclety—ye", when men- joned you cannot help feeling that they are bad men. | You kaow they are aduso4, yet you cannot tell why. If asked on what grouzd yo have formed opinions against them, you do not know. Hie misfortune is thet he was 8 capt idate for office. is which prevents msn | oter accepting «ilice Why is it that respecta say they wish to have nothing to do with poli in this? Is i orthy to be the repre of the people than to be the possessor ot ®& crown! 1 ask, why it thar ench mea wil Be 8 oaadi dace? tis beewuse th: their obeiacters to the vindictive @ it men i) is ouly sftera jury has given a scathing rebuke to this aystem of pelitics! abuse. I dono: know that a qe, tion so direct aa thia has ever bsea before presen‘ed oa jwy. Ifyou find that an hocorable man has besa v iéed, then the privilege Kex with you to sdminister the rebuke. The counsel on the other side will ask you why does Mr, Barr come here? We sey, because he hoide his character dear be misfortunes with which he haa been aiflicted, though not attributable to his own neglect, have endoared him to his character. The profits of’ many years of industry were lost | in am enterprise which ended most disastrously. | You recollect the fre destroyed the Lafarge House? That fire swept away ail that my client had earned by long years of industry He s: now welded to dation. It is only the malice of man that ean deprive ‘Allow me now to let you into the history of this malice. Ican give you the act itself—ita cadson and its consequences. Mr. Erben has enjoyed the repu- tation, daring the last year, of a man anxious to reform our elty abuses. I want to show you his history, the motives which bave actuated him Youall re collect that some years ago the New York Gas Gompsay— Mr. Whiting here inte’ npting the counsel, asked:— What has the New York Gus Company to do'with the Case Mr Willsrd resume¢—How can my learned friend judge of what I'am going to say? I shall confine myself striotly to what ia neccesary inthis case Well, you re- collect, gentlemen, that this community was agitated worse thin my learned friend is at this moment, by ‘the bill brought before the Common Council in relation to continuing the gas contract which had at that time some years to run. The bill required a supporter, and the man selected was Mr. Erben. He was the lobby member. You all rezlleet the circumstances of the case, and it is not neceesary for me to repeat them. Mr iirben was the lobby member who endaavored {0 ob. tain the passage of this measure. however, whem ke could not reach, and that msn was Thomas Barr. Mr. Barr opposed it, Mr. Erben succeeded with the Aide In the Boerd of Assistint Aldermen the matter was referred to a committee, of which Mr. Barr wasone Mr. Erben suczeeded with four of the commit. too, but Mr. Barr oppcsed him with energy, kept tl | | | | | \ i I, we cane. er hoye that on will accept office | | | | | | There was one man, , and mace a minerity report, in which Gall the villary which {t was sought to accoi plish, ‘Mr. Barr had delayed the proceedings uo long that after it was presented to the Mayor, who vetoed it, it was found to be too la‘e to pase it that session. The public felt relieved from an incubus, This was the source of the dislike of Mr Erbento Mr. Barr. This Exben is now the great reformer—the man who sadiled himself with this measure—the man whose pure hand has grasped the sword of justice and swings it round our heads, You must teach bim that 1 is only the pure who should be permitted to visit the guilty wits ven cance. ‘This is the origin of the atteck in this case. © have seen the purity of this man—let us now tura one ese upon his ixstrument. He will produce cna Alexander Su ith to prove the charges with which he has asaaied us Who is this Smith? Should not he be {reo from guilt bimzelf ? i an brought te, ana for having he was convicted and dism d’emiened for the crimes of y jurn— Mr. Smith (as we suppore) he:e rose, avd, interrapt- Ipg the cocnsel, said—he gentleman had better take cere what he £4; Mr. Willard—I sbell cot te deterred from doing my duty by any threata, ner will interruptiors dissuade me from ‘continuing my remarks. This mao, Smith, dismiiced for there thrce offenses, entertains a hostility to Mr. Barr because Mr. Berr iaterested himself in the charges brought sgainst him. Mr, Barr a'so refused n his post He was n, forgery, aud per- him a Neenre to sell liquor, and therefore he set about reven| Mr. 9. Whitic g—This is really cirrying the matter too It is the first time that I hare ever heard such at. made on a defencant’s witnesees in the opening of Mr. Brady, counsel for the plaintiff—The tleman who opened this case bas not subjec'ed himself to any censure. I know no rule which prevents counsel from stating in a geceral way the manner in which this case is to be met. Mr. Whiti Mr. Willard has, in his remarks, gone on in violation of every rule of law and principle of jus- tice. Mr. Brady—The jury will understand that if we must prove malice in the charges spoken by defendant against the pisintiff, it mast be disclosed to them at the opening. ‘We must show not only who Smith is, but that Erben knew him, His Bonor—I think that the counsel should confine himse?f to the pubiications alleged to be libellous. Mr. Brady—So we are confining ourselves to these publications, In bringiog tbis action of slander, no one denies that the words are actionable, An effort will be made by the defendant to show that the words were true, If this@hould be the case, it will then ive ui) us to prove that Mr. Erben was ac ‘uated by malice when he uttered them, and then we shail te prepared to go back into all the circumstances stated by my learned friend in ing speech must be confined to matterof the iidsil yablications. 1 think the counsel has gcne beyond what i+ usual. Mr. Willard—I was going to comment upon the uses which Erben made of Smith, in order to prove malice. Mr. Whiting— did not interrupt the counsel wheu he apoke generally of the character cf a witness, but when ntered into particulars which jhe would not be per- ted to prove fi the witness was on the stand, I thought it proy Mr. malice. decide a, not Gnia His Honor—Do you intend before the case is closed to produce evidence of malice in aggravation of damages ? Mr. Willard Yes. His Honor—Then I think you can go on. Mr. Willard resamed his speech:—I was goi that aft he charges made by Mr. Erben a; st Mr. Barr, this pro.ecution was commenced, Subsequently Bi 4 this witness, ‘mich, brovgh! before the Re fal & case, It is impossible for the Court at this momeat to to add agai . . ‘ihe result was, thet Recorder had investigated the mat i holding Mr. Barr to answer, he honorably discharged him. Subsequently, and after Mr, Barr bad | been acquitted of every charge, Mr. Erben had the suds. | city to refterate his accusations, and he has ret ted | them vy swearing to their trath in his answer to oar complaint ia this suit. snother fact a ji tle remarkable is tha’ the learned counrel who drew the answer was the counatt of Mr. Barr before the Keoorder. Tating ali these facts, are they = = i, af — Fd the | epginery brought against ar. Brrr. at, then, is your | way + he the bene of those friends who trast in you, I when the jastead ack what would be your feelings if to those unsuspecting | minds e calumey ogainet you was to be made bnowa? Er An you hope to be judged yourselves, han¢a for redress for the injury he has su PLAINTIFE’S EVIDENCE. Moses. Beach, examined by Mr. J. ‘— Q. On the 25th of October where did you reside? | A. In the ward; Iwas then one af the editors | and of the Sun newspaper. ever hear Mr. Erben stats anything about | Mr. Barr’ If 20, what and where? have heard him state something, but eannot re- ae it was in my house; | persone present; Mr. Erben ‘and spoke of 1. Brady, de- E i F l Mr. Bort ag | if 3 i F several and repeated that he knew that Mr. Barr had re. | the cbeck; Mr. Barr was not t at the time; then an alderman; Mr. Er! Dut! cannot say whether he spoke of Mr. be- the | the ward and | district of the city. | time, | Industry; | beard ie er to hes 2 him. } Twitard— It is the right of the plaintiff to show on the relevancy of my remarks, because [ had | and there attempted to make out s eharge | Mr. Barr. the piaintif’s claims at yout | stained. j ! ither in order * character of this meeting ins justification or mitigation. Mr. Brady— I placed Mr. Beac! that Mr. Whiting might uli Acide ee Seceiien have the right to put the questions as cromiaatian. In te thud count of the com: ade that defen¢ ant slandered plaintiff of the electors. The counsel introduces prove that the words were spoken at his submit that we have a right to abow 10 that were there, what was sai Mr. Whitiog— s ‘ion resumed :— Mr. Srben LA ve pl ng of the meeting at witness's house, except on matters re- lating to the words uttered by (efendeat against plaia- tiff, are out of place. Mr. Whiting—My object is to show that defendant was invited there, as well as who the people were who were areembled at Mr. Reach’s house. Q. Were the qualifications of Thomas J. Barr the sub- ject of disoussion at that meeting, as a candidate for benator for the State? Mr. Brady objected. {t is attempted by this questio: he said, to excuse Mr. Frben. Now, justification was n' fet upby defeniant. In his answer he only alleged the ‘a defence to the Lhe truth of the words spoken, a His Bovor maintained the objection, and said:—' defence set up here is the the oharge; neither justideation nor mitigating circumstances were pl 5 ‘and the case sbou'a be confined to the trath of the cbarge, and to that a’one. Q You have stated that there were words spoken by Mr. Exbea; were they spoken in the course of a speech? 4. Yes; L eupposed them to be addressed to the whole mectirg Q. Was there anyth og that called forth Mr. Exben's obrervstions? ‘A. There was a subjec’ indsr consideration; it was the necessity of reform in the city goverament Q. Did Mr. Frben atate where he had seen this check, already spoken of ? A I'am not positive that he said he-saw the check: I do not recollect of his saying when or where he saw the check; he said he knew of these charges against Mr. Barr, but I do n>t recollect thet he stated where he re- céived his information. Louis M. Pease, examined by Mr. Brady, deposed—I was in Mr. Beach's house on the cocasion referred to; I was then Superintendent of the Five Points House 0 Leaw Mr. Erben there; I camnot say tha: I Erben speak of Mr. Barr, thovch I heard some one speak of him. Mr Bra alle’ Mr, Beach to the stand, and spoke of Mr, Barr at aid the moeting in quest: Mr Erben. Mr Whiting objected ‘to the question, and the objec. tion was waintaired by the court Lor examination resumed—I cannot state person who spoke of Mr. Barr was Q. What is your best impression of it? Objected to by Mr. Whiting, avd objection maintained. Q. What did the gentieman say who spoke of Mr. Barr? A. He said that Mr Barr had sold police office appoint- ‘ments for from $6 to $100; I immediately checked in- dividual who said it, and asked him if he could prove his charge; he said that he could; I snow that was conversation on the subject, but I remember nothing definite; Ionly recollect hearing one person speak thus | of Mr Barr at the meeting, I knew Mr. Barr porsonaily af this time Crorsexamived by Mr. Whiting—I have known Mr. Barr for four years; Iam not particularly intimate with recelved any favors from him as alderman; there were from eighteen to twenty five persons in the room st the meeting. Q. Were the qualifications of Mr. Barr the subject of Stscussion by other persons at that meeting? Question crerruled by the Court. Witnes:—-I heard all that was said, because I paid par. ticwlar attention. Q, Did this person, whom you suppose to be Mr. Erben, say that he beard this statement about Mr. Barr? A. T cannot say for certain; my impression ts that he said he could prove the charge against Mr. Barr; I heard him speak of seeing a cherk; T cannot give the precise words he red; I can- not say that he sald he bad received information which he believed to be true; I do not think that he mentioned having seen an affidavit on the subject; I believe that he was standing up when he spoke; I think there was a chairman af that mceting; my impression is that Mr. Peter Cooper was there, an we he was chairman; I suppose that Mr. Erben was addressing ‘the cha‘rman, with the intention that the others should hear him: I cennot tell whether his speech was long or short; I think that more Aldermen than one took a hitch at it that night Q. Were the other speeches in the same strain? A. The majority of individuals brought up, connected with the Aldermen and city officers, received a pretiy good shaze of denunciation; I cannot recollect whether I wade a speech; I cannot say what Mr. Ecben talkei about when he opened his speech: Q Did Mr Erdem say anything in that speech about Mr. Bart of his own knowledge? A. T cannot say. Re-examined by Mr. Brady. Q Did you make any charge against any aldermen for | receiving bribes? Objected to, and objection maintaiced by the court Q. Did any otber person make any charge against Mr. Barr, except the gentieman whom you suppoze to be Mr. ben? A. I think not. Samuel Baxter, examined by Mr. Brady, deposed—I was present at tho meeting in question; I knew Mr. Barr and Mr Exben previously. Q. 1id you hear Mr. Erben make any statements against Mr. Barr’ and if so, what? zs A Mr Erben was talhing about the Common Council, and said, in relation to Mr. Barr, “See what a damn pretty rasesl you have for alderman in this ward! See how he has made his money, by selling police ap- mtmenta; in one case, | know that he recsived a undred collars, and he has not made the sppointment,’? Here Mr. krben was chocked by the last witness (Pease). Cross efamined by Mr. Whiting—I live at 50 Alien street, ard keep a feed store; Alderman Barr desit witn me while he hept a livery stable; he left off keeping a livery stable two or three months ago; I told these state- menie to Mr. Ba:r the morning after they were spoken; I don’t know whether Mr Erben mentioned the officer who had received the sppointment; I did not hear any- thing raid about a check; I went to Mr. Sweeney’s office tae Sy ago, and statedavhat Thad heard spoken by ir. Erben. Jobn M. Clawson examined by Mr Willard, deposed— Lwas also at this meeting at Mr. Beach’s house; 1 know Mr. Erben at the time and heard him 6; about Mr, Barr; Mr. Erben stated thet Me. Barr had been recel vi: money for meking police appointments; this is the s atacce of all I remembe: the remarks were gener: Cross examined by Mr. Whiting—Mr Erbem did not curse or use bad language im what he said; I do not re- member that he called Mr. Barr a damned rascal or made use of apy such words. Deviel J. Tiewann, examined by Mr Willard—1 was Assistent Alderman of the Twelfth ward in 1851; I know tiff and defendant; Mr. Barr wasa member of the rd of Assistants at the time; I recollect the subject | of the gas contract brought up there. Q. Was there an application jing before the Com- mon Couucil for such a contrac’, or was there any dis. cussion on the subject in the Board of Assistants? Objected to by Mr. Whiting. His Horor—What is the object of the question? Mr. Willara—We propose to show malice on the pa: of Erben; that Erben was exceedingly interested in bil brought up before the Common Couueil, which was defeated by Mr. Barr. ‘Objection maintained. Q ‘Do you known thai Erben was the advocate of a | bill before the Common Council in 1851? | A. Mr. Erben was aivocating the passage of a bill in 1851, in regard to the gas contract. Q. What was the nature of the measure! Question ruled out, cn the ground of irrelevancy. Q In reference to this messure, were Mr. Erben and | Mr. Barr in a pesttion of opposition to one another? | | A. There was no mor tility between. them than between Erben and myself; there was the kindest feel- ing between Mr Erven and myseit: I speak ot personal feclirg between myielf and Mr. Eben; the bill created | ro aptagoui+m between Erben and me, thougn I was op- posed to it; Mr. Erben exhivited the usual warmth of pereons Ge ow passed. Q Lid Mr T Oppose the bill which Mr. Erben wented pecsed? Otjected to by Mr. Whiting Mr. Willard—I pose to show that Mr. Barr occa riened the cefeat of the Dil in committre, and that « personal hostility was felt by Mr. Erben towards him in consequence. Objection maintained by the Court. Cccsa-exarined by Mr. Whiting—I was Assistant Al- derman, from January, 1851, to January, 1852; I was Algerman in in 1852; Mr. Bair was elected alderman at | the same time I w: Q. Durmg there years were the police officers nomi- rated by Aldermen or Assistants, or either, of the vari- “Oujected te by Me, Brad the ground of its being yjected te by Mr. Brady, on nt its s matter of law and irrelevant. e Ohjection mein- -I never had any conversation with Mr. Barr on the of the appointment of police officers. Mr. Brady here announced that the plaintiff's case was closed - ‘The court then adjourned for the day. Hxavta OF New ORLEANS.— With sincere pleasure we rs pe our readers upon the iraproving state of the public health. There has been a considerable co- crease in the number of deaths the ptred with the as one, the Capone Ape | smovg the fover cases. We are confident Tato the Mayor’cn Montag, that tae improve atin the in’ ye Mayor on Moi sspitery condition will be ot{ll more evident. No doubt much of this is owing to the tful weather we have bad last week, but many think that the fever has about ron ite Net Gy that it will rapidly disa; from our midst. fe hope this may be #0, 1 whatever may be the cause, the gratifying effect is evident. We trust that by the expirstion of another week or two, our week as com- that our ¢: cf absent may be cnce jriends aad the more gladdened revival of business.—New | Ovtcans Picaywne, Oct. 8 Baatta oF Boston, —Du: the week ending Saturday noon, only 72 deaths piri Fy or oven lees than late week, indicating that the city is in an condition, Twenty-nize of the dexths persons aa eis Os ee ‘Wy wal diséaved, nad Ging of teething. | nt to the meeting by invitation of Mr. Beach; | aving heard on the subject; | city will have sgain resumed ite usual healthy state, and | it | cheerfully; would Oce, 19.—The prisoner im this case ts twenty-cight yesrs of oge, and a mative of Irelamé. He is indicted for the murder of his wife by violently beating and kicking her, on the first of August, 1864, at Ne. 138 Hester atreet. . The following jurors were swora:— George W. Moore, Ralph James deotae Wied Thomas Warren, Joba Liddy, Walter L. Chi Tomes a Whee. ‘The District Attorney opened the case fer the people. ‘The teatimony of Dr. O'Donnell, for the defence, was permitted to be first taken, in consequence of the indis- position of the Doctor’s wife. It merely went to show that the prisoner, whom he hed known fer ten years, ware man of sober and peaceable manners. for the accused, ask- | Mr. J. B. Phillij Lady ap ree ed the witnece if he know the deceased He raid he had known hirsince she was a child. Q. What was her character as to sobriety f atevedore, was then called for the Objected to and ruled out. Patrick ution, 7 that ke knows the prisoner; he lived in ic street at the time of this affair; I knoe prisorer and his wife ‘the attic; I heard a noise firet; Patrick come home to dinner; I could not tell what time of day; T should think the usual dinner hour, which I ol! 12 or 1 o'clock; Iheard the loud noise in MoMahon’s place, and then it;ceased; then, afver some time, I heard it again; I opéned my own door and walked out; I saw him and her just outeiée of their door, avd right in front of my door; 1 eaught him ia my arms to pacify him, aod him not to abuse her; he then seemed to be paci- in turning in or out, Iean’t say which, b | on ber with bis foot; I can’t say whether with 7 her by tre 1be was rot standing up; she was & kind of sitting; hi mped on her she laying down; [ saw nothiog © place; I walked down stairs, and dido’t atey there mere than 10 or 35 minutes tili foame up agaia; the prisoner went down a! I coulda’t eay how long it was between the heard the first loud words snd the second loud words, I fell into a kind of @ dose; had at homeail day; I can’t say what words I heard sil I heard her say to him was not to strike he: rot over loud, nor not very easy; my door was shut end loched when { heard this; I heard the expression, ‘Pat, stop, end not strike I noticed blood om the boards; T eaw bloed upon ber, about ber face and reck; can’t say whether it was on her forehead, or her face or her lips; but it was on her face; what I said to the prisoner was, trike her; when for T begged of him, for God’s sake, not to | [heard the loud ta'k, to the best of my opinion it was Patrick McMahcn’s voice I heard; when he stemped on her, be was in shirt sleeves and overalis; he had either shoes or boots on his feet; the woman appeared to ‘be quite unsensible; I don’t know whether the prisoner came beck after he went down stairs before me, un- til the officer brought him back; when Mrs. Mcéahon was ible, she cidn’t make any noise that I could hear. Cross examined by Mr. J. B. Phillips—I had not been at work that das; I didn’t goto work because I dido’t feel well; t had something to drink a: the ; I had been two days without work. poe vngas ‘been ona spree? A. I had been & good A that was what was the matter with me; I saw Mrs. Mc- | Mahon that morning, before Patrick came home to din- ner; rhe was in my room; I can’t say that she was quite sober, because I saw her drink; I can’t say that she was quite d:uph; she took adrink with me in my room; I could not sa; mm) abe wasn'tqulee sober; I McMahon falling down stairs that see it; I did not ace her lying down before hon 6; I wasn’t out of my bed; the cause of the that time was, an acquaintance of mise from country came to see me; I doa’ McMahon had any dinzer prepared for Patrick when he | came home; I did not bear a noise as if Mrs. McMahon had fallen down, before Patrich came home; I don’t know where my wife is; I have not sen her these five or six weeks; I have not endeavored to find her; Patrick was os Fs to lifther up? 4. 1 dcn’t know which. (Witness scribes the position in which the prisoner had his wife | by. the back of the neck, and her head leaning against | jomach.) ‘The prisoner stamped on her as he was | a exas cee Coat his room; there wasn’t mai Baye ledidn’t vee Mrs McMahon; 1 don't recollect if dravk with her the day before this occu: Q Cap you recollect aday when yor A. Well, i could’nt aay; she and my w usted to drink when I would be out. Q Wes the not an intemprrate woman’ "he District Atterney objected. Mr. Phillips said—The sheory of my defence is that thia wasan intemperate woman, and thet she fell that day and injured kerself by the fall Jo the Jury—When I Yaid hold of the prisoner ard tid him rot to beat her, didn’t see bim do any- thing before that; I think it was om her bowels he stamped ‘To the District Attorney—He didn’t do anything in rearect of abusing ber when he had her by the back of the head; saw her in the hospital dead. 4 istrict Attorsey then read the depositions of Ce her sober? for all I know, Rose Gallagher, the wife of the last witness John F. jantz, police officer, deposed, thit he went deceased; saw several persons nding on the stoop; asked if the prisoner was an; I asked him what was the matter, and he said nothing. some women put their heads out of the win- | dow, andasked me to go up; I said if the man had been | beating hia wite to send her down; they said she could | not come; I told some persons who were there to stand | by the mea, and Twent up; I caw the woman lying, and | a number of women round her; I saw @ wound under the chin about an inch anda-half long; her right ear was cut, and there was a wound on, her right cheek; | she was speechless; ihe women were washiog her with water; ber eyes were closed, snd the blood flowed free. ly; I returped to arrest the person, and I ret him coming up the stairs; I directed the people to send for a poytician, andI took him into custody; he asked for coat, and eded with me up to Essex prion; Larked him why he. had ebased his wife; he eaid hecaze home to his dinner, and there was no din- ner provided for him, and she was drank, and he o: en a punch; that’s all he sai mediately returned after leaving him at the prison; the physician had not arrived; when he came I assisted | him in taking her into her owa room, and put some- under her head, and the doctor ‘to ex- ine the wounds; he dressed her wounds and gave her ff, to rub her throat to ital; the last witness #1 erie pierre f x down; he ee last witress) seemed as if he been ¢rinking; ‘was carried over on a bier; I went with him; be was not so much under the influence of liquor as to be incapable of essisting to carry her; he seered to understand wiat,he was about, for he wanted to know how much he was to be paia for it. The Court—Would you hsve entrusted him and an- otber man inthe same state to carry the body? A.J | would, except from his extreme iguo:snce; he seemed to be a very ignorant man. To the District Attorney—The prisoner seemed to be | under the influence of liquor. * | Dr, Wright—Sew the of Catharine McMahon; ahs was brought tothe Hospital on the Istof August, about bor6o she was insensible, and had symptoms of compression of the brain; I made a post mortem ex- | amination; it disclosed a clot of blood under the mem- | braze of the brain, on the right ride of the head; some considerable violence on that side of the head was the cause of the injury; she died from concussion of the brain, about two or three o’clock next morning. Cross examined by Mr. Phillips—I saw no o1 inja- ries sufficient to cause death; there was no fracture; | the injury causing the concussion of the brain might | have been cauted by a fall onthe right side of the head. Q. Would not such sn injury be more likely to prove to 2 person of intemperate habits? Any ary would be more likely to prove fatal to a peron of intemperate babits; I did nt examine the stomach, and cannot say if she wasa person of intempe- rate babits; she had a slight contusion on the side of the hip, but none on the stomach; the bruise on the hip was abont the size of a quarter of a doliar; it might have been done by a fall or a slight kick. ‘he case for the prorecation here closed. Mr. Phillips said he should not trouble the fourt with any formal opening, but proceeded to examine J. bn McCready, who deposed that he lives in Brooklyn; I am a laborer. I know the prisoner; I kuew his wife Cath. orine; I was at his house on the of this eccur- ren ¢ between 11 and 12 0’clock; I caw his wifeying on the boards or on the bed, I ce: eay which; ti was no bedatead; I asked her whe ‘Was at work, and she made an right over a trunk; before she p(ruck the trunk rhe was bleeding uncer the chin; her head strack the trunk; | didn’t ber up; 1 went right out; she made an offer to talk, at Teouldn't understand her; T saw bottle and be brandy in the hottcm of the glass. rironer for tem yoars, and gave him a good character for sobriety and quietness. On crots examination the witness said the bed was on the left hand side of the door ss he wentin, and the trunk om the right; he could not tell what kind ofa trank it was; it was about three feet long and one foot nine inches high; it was covered with leather, he 5 work and went that day to see Patrick to try steady weik- The witness further tosti the up; she fell with ber face towards the trunk; she did not try'to save herself with her bands; she didn’t stand up when sh tose from the bed; rhe was too drunk to stand, but fell light over against the trank. ‘ er |—I am ® soap maker, &c.; Hemuel Southerden, ¢ Learry on m; Paainess ie llzabeth atrect; I know the gee at the bar; he was in employ on ist August ¢ uncer my orders; I was his foreman; he left to go to dinner that day two or three minutes before orafter | 12 o’cloek; he was perfectly sober; I know him more was | orler#—on no Cross exsmired—I kno a z 3 g Meatanen wes ectct "me iaeyer was azrested come lawyer me to children; I have taken the trunk; it is feng ot comtio’ aise high; it haa! ; it hes «kind of an ; the room was t fest square; i. thon road the eg own f in he stated was @ native of 4 came bed, SEE up, and 8 Jew minutes, brought z 3 peptic ina verdict of not guilty. ‘The prisozer was then discharged. ABEAIGNMENT FOR MURDER. | During the proceedings in the above case, Jerome B King, a young man, about eighteen years of age, was | arraigned for the murder of Peter G. Post, by stabbing him with a knife. The prisoner pleaded not guilty, and was removed. Supreme Court—Special Tei m: Befcre Hoa. Judge Clerke. CONSTRUCTION OF THE WILL OF JOHN JACOB ASTOB. Ger, 18. =. v8. .—The testator, the late John Jacob Astor, deviied lands in various parte of the city of New York to children of his daughter during their lives respecti: and, of Sena his or cay be divided scoording ‘au. at the request of foe phar ig these lends are devised, tu set apart salty, subject to the future eutates limited pd he further a equality. He also directs his executors to convey to the directors of the Astor Libary a certain portion of those lands, at a valuation tabe ascertained by them; and he promises that the amount of such valuation shall be ap occaeee among the cevisees a4 an equivalent for the nds, and shall be held and disposed of in the esme mapper as be directs in relation to the land, both as to capital and interest, 1. It is clear, that the land not thus corveyed, and the proceeds of valuation, should be alike capsble of division among the devisees, pi ely au if no part of the land were converted into moner. Unless we can discover something in the will indicating a ¢ifferent intention, we must conclude that the tectator designe i that the money should be included in the partition as well as the land,for which it was taken asan gauivalent. ‘The wil contains nothing inconsistent with this errapgement. Indeed, the conversion into 4 of a port of the land facilitates the partition for w! the testator eapectally ageere subject to the Nore of any of the devisors. By taking the remaining lands and proceeds of the land conveyed tothe trustees of the Aster , and regarding them as identical, ‘an equality of partition is much more easily effected laod--periaps eapenetag withthe seouealty of ebetgiog ape Oi necessity any of the shaves With aeas to make theavall of eq value The executors are expressly authorized to any of the shares to produce this «quality. Now, if amount of the valuation of the land taken for the libra- ry is subject, like the land itself, to partition—as it most assuredly is—applying the former directly to equalize the shares is nothing more than any of the respective parts of this valuation—to wi by the positive provisions of the will, the whole subject of the devise is made liable. Bu®to this, I believe, none of the rarties cencerned, whatever may be their doubts, make apy decided opposition. ‘The chet difficulty arises in another point. 2, will authoiizes the tenant for life, with arsent of the executors, to sell one half of the stare devised to him for the improvement of the residue of hisshare. If theshare of such party, however, con- sists of a portion of the amount of the valuation of the land conveyed to the trustees of the Astor Library, is ism secor?ance with the intention of the testator that this should be appropriated to such improvement, in- stead of compeDing him to sell more of the land to effest the game purpose? Or, rather, tho question is, can the court effectuate a purpose of this kind, although it may not strictly be wit the letter of the will, if it is in conformity with the substance and spirit of it, and plain. ly promotes the end which the testator himself must have contemplated in providing for the arrangement? In the execution of their duties, the grantees of a power are bound toa strict, and, in many cases, to a literal adhe- rence to the instructions Cogiin power. And in moat cases nothing is left to discretion. But it does not follow that there is no remedy when a literal execution of the power would produce difficulty and em. barrass ment or upnecessary trouble, when a slight devia- tion from the instructions of the grantor would effect the ide rcepm greater facility ana no ent t> the ter eats involved, and wih equal benefit and certainty, accomplish the object devigned by the testator, Equity will never compel the performance of a duty by the cir. cuitous and complicated process, when it ean be done without any violation of tae intention of the grantor direct acd correct means. he history of the equital jurisprudence of Eng’and is full of instances of this na- ture. The numerous charitable and educetional institu- tions with which the ce of recentand remote ages have filled .that land, have been constantly, hen century, undergoiag ion durirg the last and the changes uncer the supervis the Court of Chancery, ich are entirely at variance with the directions an ef their founders The circumsianns of the e progress of civillzation have produced auch changes that a liters! compliance with the original plan would, instead of fulfilling, defeat the purposes for which these institutions were designed; and although they may be merely private endowments, the court has never heritated to interfere In the present case, to compel a devisee to sell 8 part of the land for the ‘im- provement cf the remainder, when a fund isalready pro- ‘vided by the sale of another portion of the devise, mere- ly because that sale was vot specially for the improve. ment, would be too fastidious a construction of the tes- tator’s intention, when we plainly ’ ject which he was desirous hips was, that the money should be applied to improvements, and that no more than one half of each devisee’s share should be sold for that Whether the money in point of time was by the executors,before the thought it decomary to spp te It to that purpose, or whether the was 60! fe for such an licm, was but a ary consideration, rather subsidiary than essential to the end proposed by the tes- in the numerous and complete arrangements con- in his i" any of the tenanta for life shall be desirous of improving any part of the real estate to be apportioned or set apart for him or her, th executors uthorized to make provision for the ap- ition of share of such in the fand produced the sale to the trus eesof the Astor Lil purpore of such improvement, with the like effect as if the same were the proceeds of real estate, sold by the tenant for life, wi cutors poveens in the deed, pursuant to the provision eleventh section or A te Court. ACTION AGAINST AN INSURANCE COMPANY. Before Hon. Judge Duer and a Jury. Ferdinand Henry, Assi dc, vs. the Lit London Fire and Life Insurance Company.- ‘This wasan action on a Polley of insurance,{to $2,892, the value of goods said to have by a fire the shitt store of Gustave Pipet, No. Fourth street, on the evening of the 2ist Lecember, 1853. Meears. Ju & Dickinson appeared for the plaintiff, and Mr. J. W. Gerard for defendacts. Pipet mide an assignment of b's claim for the benefit of his creditors, oS elas eae the assignee. The defence was that the claim is fraudulent, there not ha been im the etore at the time of the fire the amount of goods setupintbeclaim. The evidence, which was very abun- dant and somewhat contradic! bore chiefly upon this Fest, ‘The jury returned a verdict for the plaintiff for 500. Before Hon. Judge Boworth and a Jary. Ocr. 19.— Augustus V.S. Groesbeck and others vs. Robt. Hi. Berdell and others.—This action is brought to recover the price of five handred of lard which the plain tiffs soldthe defendants, at 165¢ cents, and at tare of 14 Ibs. per keg. which the plaintif’s broker represented to be the correct tare The defendants, however, found on weighing the lard, that the tare averaged 163; Lon. por keg, at which they re-soli them, and tkey claim this difference from the plaintiffs aintiffe all that they sold the lard to the def agreement, which was binding on them. The Court, in chargicg tke jury, said that if the de- fengants agreed to buy the laid deducting prectasly 14 be. for each keg, and were not induced to do o by any iraucu ent [ence they must pay for it a{ter deduciing 14 Ibs ; but if they were induced to make that agrermert by positive representations om which they re ied, and thet such representations were made by the Cofendants or their agents, with a knowledge that it was in 141bs , then the defendants were not bound at that amount of tare. If the jury came to the conclusion thet the defendants were bound to pay ovly for the actual amount of the lard, then they were bound to be satisfied how much less t! received after deducting the 14 Ibe. The me aed bound to allow them more than this e found that greater smourt than 14 lbs. sh ve been allow. the defendants, they would deduct it from the $1,51} claimed by the plaimtiffs. Sealed verdict. # Before Hon. Judge Slosson. Oct 1 —In the case of Becker, administrator, against the Third Avenue Railroad, for causing the of Mr. Pecker, late ng hg to the General Democratic Committees at Tammany Ball, (reported in yesterday's Hxna.p,) the jury brought in a sealed verdict for plain’ of six cente cCamages. Dnkaprun Casvarty—Mr. Pardon Teft, of Eden, called us this and gave us the following i, of » terrible fatal accident which oc- curred in that oe ee eee A number of the citizens of Eden Vall+y were endeavoring to remove ve hen’ the timbers ve ae "9 but Peay pa for.—Buffale Republic, Oct. 17. ——— William.&, MeWS, ‘who was for thet, Louis Democrat, died recoutly ia , for the | i LEER a ii #f if i 5 é H £ street; at a Fighth election ‘district, Ninth removed from first street; Second district oF ee meen Szeenes $e Serer Mast ort ot ; Fourth the Seysrtir Arex: 686 Hud election poll the Fi word be remeved from 66 Ann street Vv ibiam B. ora Fong ins) district of the Sixteenth ward, in removed district; that atreet; that the teenth ward Te Baa at 48 Grand street, in 480 Grand street; George L, Loatrel appointed i tor in theSixth district ef the — ly ak) of Abrabam B. Purdy, rahoyed i poll of the Thins. abtrict, ‘Twentieth ward, be held at Seventh avenue, instead of 416 Seventh avenue: the fa th ap district, Twentieth ward, be held at 60 Ninth avenue, instead of 835 Ninth avenue; Samuel ‘Wallace, Jr , George H.} triker, and Thos. Douglass, sp- inted inspectors of for the Fourth election istrict of the Twent} ward, to fill vacaveies in the rew distrist; of the Third district of Eighth ward removed from 179 Prince street to 186 street; Benjamin D. Welsh by rapes! ee of 18 Third district, Fourth ward, place of Patrick Boyle, removed from the ward; the poll of the First district, Ninth ward, removed from 618 Greenwich street fo 611 Greenwich street; also the Third district poll of ward be removei from weat corner of ates 672 Greenwich street; Simon of Flections in Second in ‘Wm. Fisher Weeks, appointed, Inspector of Elections, in the Third district of the & Pepto the cn appo' district of the Eleventh ward, in p! hoff, removed from the district; Peter Ine pecto: Wm. Ashman, removed appointed Inspector in the First ¢istrict of ward in a ward; ‘ox. 0. ap) r for Fifth district Seventeenth ward in from the district; Jas. Carr, Seventeenth of Andrew Troment, removed from the ard appointed Ins; for the Fifth’ election district in place of Pe Palm Evans appointed -for W. H. George W. Weed jnted , Ing; for district of the Thifteonth thee vapteuaieats ofa ies catego Several a] ents of inspectora polis, mieeeay wexioed in the Board of Councilmen, were concurred in. COMMUNICATIONS FROM THE FIRE DEPARTHENT. De ary omitting sry Or canon % e) ent, sul comp! m- page. a6. was sederted to ‘Committee on Fira Depart- by No. ds ogainet Mook and iadter Company No.1;of ny No. it an jer Company No. 11; of sntot, with com) ts againat Engine ‘Com: wy No. 46, Hose Company No. 5; of same relative to of Henry Gibbons. All referred to committee. ‘THE SIXTH AND EIGHTH AVENUES, By a communication from the Comptroller. it appears hat the receipts of the tixth and th avenue Rail- roads, for the month of Feptember, were: — $19,219 21 25,086 47 expulsion Sixth Avenue Railroad Company. Eighth Avenue Pailroad Company. Total. COMMUNICATION FROM THE 00) ‘TRACT. Frvance Drrartent, New York, Oct. 11. To sx Common Covxci.— The Comnittee of the Board of 4ldermén, to whom was referred the communication of the lane pig the 28ta ult, snd the proposition of W. B. Reynolds ‘to surren- der to the city bus contract for the removal of dead aai- mals, offal, & , called on the Comptroller with # modified roposition, and one which, in their judgment, the Qearptrolie? had authority to accept, and thus settle the whole gem hearey This was a proposition drawn up by the counsel ‘Mr. Reynolds, (Judge Edmoads,) and pro; — First, ‘That the items admitted by the Comptroller to the Board of Aldermen on the 5th of August, with in- terest thereon, to ke paid to Mr. Reynolds. Second. That in regard to the disputed items, as set forth in thst communication, one half of the sum speo!- fied in the contract be paid. (See detailed statement No. 1. Third. That on the payment of the account thus made ‘would execute a release of all claim Fourth. That all suits, controversies and actions, grewing out of said contract should ing their own costs. ‘The aBmteed "itemns to November Ist with interest amountto...........+ teeeee Ada for interest and coats paid on execution, Item fa dispel ems in le Interest on same... The Comptroller suggested the payment Gene Mr. Reynolds Although this is $21,639 50 less than claimed in his contract, yet it is $20,703 more than the Comptroller p:0] to in his commanication of neue 8 ta the court deciied as to the validity of ¢ cont j Divested of the collateral propositions inclu’ed in Mr. Reynolds’ communication to the Mayor, the Finance De- he cowed clearly has authority, the 11th section of charter of 1849, fe settle and adjust this account. It is to state, Rowever, that the aj 18ta iF not sufficient to pay more than $65, lJowance on the cont otherwise provided for. tax ly for this contract, of which $30,000 re- mained in the the close of the year 1853. laws or ordinances prohibiting tat of this ‘been levied and ied for this bitory clause in the tax law of is as follows:— respective sums hereinbefore ristion for named shall be expended or applied to any other pu or objects than said objects or purposes res; ly for w! the Board of Supervisors are hereinbefore em- powered to raise the rame an aforesaid.” The form of the surrender of the contract was sub- mitted to the counsel to the corporstion, and approved by him. As this contract is row cancelled, ii re- s}ectfully suggested that a resolution be passed by the mmon Council authorizing the City Inspestor to ad- vertise for sealed bids or proposals for removing dead animals, offal, &c. In giving th’s notice, ard making the contract, it is in my judgment desirable that s contractor should be away daily, during the summer North, 28 wel as the river, dew and offal, and in this way measurably ar the unbesrable nufsance which created so much difidulty at the foot of Thirty fourth street im 1853, as shown in the testimon; in document No, 43, of the Board of. Alder- men, It is important also that the notize and the contract sbould embrace only such items as the public health re- quires to be removed at the expense of the public. Items which yield « profit to the contrastor or to indi- vicuals, like the garbage of beiler’s nuisance, &e., one eon RFT a © dispote y confidently believed, that the nuisance of dead ‘animals and offal can be essentially abated, with mucn less ex- pense to the cit; inthe eepreguiay all of which is re. spectfully submitted. 4, Comptroller. Docommxr No, 1. Effect of the ition of the Comptroller, (in his ager) — up to Nov. 1, 1864:— le proposes to red 1. For eat on Bast river side, $19 & day, from Ist April, 2. nietiog Did beat $i, eb seco itd % ; Removing 1,121 dead horses, &e., at $2 60, up lat ber. 4. Removing dead ke., at $1002 5, Lime, at amonth,......, Add removing dead horses, ‘and Oct ese fay 840,., Interest to lat Nev., 1854, if i i il EEE E i : 5 i ESE. + : é i i l : i ie a a i tosis 3 4 iS F Q fi isn 4 Various have been the surmises in to the date at which these works were and we would here say to the carious, that in cleazicg for the Fair, several stumps bave been left upon measuring from two to three feet in diameter, and euch an bave an interest sufficient can easily count the anaual growths, and, if not learn the date of may at least approximate to a knowledge of the a which the present growth made its appearance. eg in which they + present solut mystery in w! are al Fair will be old, presenting, an it docs, m vsty stoop enting, as & very Miner aldo, hd protected at tho inaet an almost steep the and ‘being isolated trom the TB, with oot the one place of in; and egress, we would 61 that this may have Seen the vast “¢prigon house,” fate whice joners of war were driven by j thousands, aad the altar, in the “arena,” if bat allowed to arast, might tells tale of human living sacrifices at ich thé Hindoo would stand appalled. There are numerous other works in ‘These, having their location on’ high hills, or toe for- midable for the husbasdman’s ‘‘ leveiler,’’ are allowed to stand as our only index to the character and caste of ‘once powerfol and semi-civilized people. The Burning of the Steamer E. K. Collins, As everything relating to the burning of the Collina is of general interest, we make some extracts from the Cleveland paper in refprence to the disaster. ‘The Cleveland Herald of Tuesday publishes the follew- ing statement by Mr, A. X. Cary, of Grand Rapids, Mich. It will be seen that reflections aré mace by Mr. G. the conduct of some of the officers of the boat. It be hoped that they will be able satisfactorily to explain every that may appear to their disad ‘We have received a statement from Mr. wass nger on boerd the ill-fated Collins. ‘Mr. C. ‘was sitting in the upper forward cabin reading, when the alarm of fire was , between ten and eleven o'clock. Mr. C. was probably the and Gressed when the fire sed down the cabin gangwa: reached that deck he saw Jow the main deck, but it ai Srough the eabin ately ran u cal Soper hurricane deck to pil wheelsman that the put her ashore. This and the last time Mr C. sake, to put her ashore, on and to enforce his request poin| jo the flames then butsting out around the smoke pipce up on the deck where they were. ‘he wheelsman made no reply, and the boat was ino aig for the shore; or if the attempt was made, it was after the had been stopred, and ber headway about e the lower hurricane found a jife preserver stool, end seizing that, he got dowa over the outside of the bow as low aa he c’uld, where the fico reached nothing but his left hand, with which he held on. Mr. C. got off his coat ard boots, and while doing #0 ». number threw themselves overboard, one man knocking hat off as he went over. F ES with him, by a boat from shore, and upon the f Hlotay, "When Br. 6. was on the main" Geck, Wolere We fe Lge n flo ge slgpa wollen Megind port the helm or the wheel, and ing up saw two in front of the wheel-house, aud the circling stound the wheel bi and oi , bat M: tained’ ‘that Mr. Stone may on his way down at that somew] e- if ing when Mr. C. came mornin; There eee ae rel Ne in thi officers to discover fire, for Capt. Sag deca State, had a conversation with the captain steamer who was at Malden when the Collins psssed, and who cried out to the officera ot the Collins to put the boat astore as she was on fire. Mr. Cary, on hie way down Sas & conversation with the of the ins, and’ asked him why the bost was not put ashore #8 soon as the alarm was heard. anid were #0 many {alse alarms about fire that it was not cus- tomary, as it would damage the boat. The only way of Rye sey on board, was the clerk of the Collinge, Fintry, inquiring of each one that the account’ as Mayes, of this tty, in Which & er, in in-law living in Brecksville Jest said brother in-law and & came to town, and, visi! bad cecasion to ff UE hd ef |