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

mor — Supreme Court—Speeial Term. @rmr0N ON GUTS OF TAX PAYERS AND POWERS be ioe TAX COMMISSION SRS. : Duo. 12.—In the matter of Isaac Adriance against The Supervisors of ihe City and County of New York.—MMrron- | mu, J.—Isanc Adriance moves for@ mandamus sgeimst | the Supervisors of the County of New York to require | them to remit ro much of the tax on his real estate in | Sohn stroet as is levied on the increased valuation of | anid property by the tax commissioners beyond the val- | ustion by the essersors, and also to remit the taxen | | | | any valuation of his property om the Third and Fourth avenues and between Fifty eighth and Pifty-ninth streets beyond the value sworn to ‘y bim. The John atreet property belongs to Mrs. Adriance, and was valued by the assensors for 1853 at $22.000. The tax commission ers raised the valuation to $28,000; aud, whi pptied to to reatore it to the former valuation, refused t> do so. Mr, Adrinnee applied to this conrt to compel the tax Commissioners to restore the valuation, sad it was re- fused om the ground that the control of the books had peseed from the commissioners. He then applied te the supervisers to correct the valuation, and they refused. The block oo the avenues was valued the assessors at $3,000, Mr. Adriance appeared before joners and made afidavit that it im faet worth no more than 320,000. That afidavit was retained by the commissioners, but they refused to adopt it as a correct valuation. Other lands belonging to him were valued by the assessors at certain sums, and the valuation increased by the tax commismoners. Mr. Adriance applied to the supervisors to correct all these errors or irregularites, and they refased. ‘The first Sasrtian ia these on is, Soe S yond is the proper remedy in such a case? In the ex. rel, Philip Church against the Supervisors of All ‘y 16 Wend , 198, a certiorari was refused, because writ was in the discretion of the court; and the objections made to the sasessments, if valid, “were not such as affected the relutor’s interest alone, but were in prin- ciple applicable alike to every person who was named in the tax lst; that the complaint was not that the relator had been required to pay more than his just proportion af the county burdens, but that in consequence of the Wowance of illegal charges, bis tax, in common with | hat of every other person named ia the assessment rolls, | aad been Yuiproperiy increased.’ (16 Wend., 204.) dere the relator spplies on greuseds pocakiar to himself, wd hin application 1s not fora certiorari, which, by | winging up all ibe proceedings, might stay the collec: dion of all taxes, but for a mandamas, which wou'd, if ye is correct, make an assessuent legal in amount and ‘orm, which is now illegal in bovh respects. In Hull vs. Supervisors of Oneida county, 19J. B., 269, a surgeon, who hed rendered services toa pauper, applied for amandawos te the supervisors to compel them to audit and allow his account; the man amas was reused on the merits, on the ground that the services were gratuitous. But ‘the court held that it was the proper remedy, but for that objection; and that “ when the inferior tribunal has a discretion, and proceeds to exercise it, this court has jurisdiction to contre! that discretion by mandamus; but that if the subordi: ate public agents retuse to. act, or to entertain the question for their discretion in cases where tke law enjeins on them to do the act required, it is the office of the court to enforce obedience to the law by mandamus, in cases where 10 ot! al remedy ex ists, (202); and the court he {the claim was abt of iction to in- struct and guide the supervisor duty by mandamus; not to control their discretion in judging what is a reasovable compensation for suck ser. vices, but to compel them them to admit the claim aaa county charge, and to exercise their discretion a to the amount,’’ p. 263. (See also the same distinction in 1 Rill, 362-7; People ex. rel Phoenix vs. Supervisors of New York.) Ch. J. Spencer had said before in 12 J. R. 415, (People ex. rel. Wilson ws. Supervisors of Albany.) that “ the office of a writ of mandamus is to require the persons to whom it is directed to do some Yolen) thing, which appertains to their office and daty, and whic! ‘ righ! the court issuing it suppores to be consonant to t and justice; and that if the party making the application has a legal right, and no other specific i remedy, the writ generaily goes.’ The latter part of this opinion ia to be understood in connection with the prior. as applying only to matters appertaining toa publle office orduiy. tn Bright va. tho Supervisors of Chenango county (18 J. R. 242), the court granted the writ to compel the supervisors to aadit and allow the account of the clerk of the county for books purobased by him for recording aeeds, mortgages, &c., in his office, the court holding that they were proper county charges, ‘but not passing on the value of the books. The Baak of Utica vs. the city of Utiea (4 Paige, 399, &c.,) was a bill te cor oe city to remit a tax on the surplus funds of the boyond its fixed capital. The relief was granted, asthe objection, that the remedy was at law, ‘was waived: and the chancellor said that ‘as the char- ter of the city of Utica gave te the common council of ‘that city the exclusive control and direction as te the assessment and collection of the city taxes, he thought tho nts had a perfect remedy at law by an ap- Plication to the Supreme Court for a mandamus to com- | the common council to correet their assessment and ion of the property of tne-bank, if it was illegal: ‘but that the remedy would be mach more imperfect and 4oubtful in the case of an ordinary town and county tax vhen the assessment is made by one body, and the tax mpored by ancther; eapecially it the illegality did yot appear upon the ‘face of the assessment roll.’ In the People vs. the Mayor of New York (10 Wend. 398-7), the court, on the merits, refused the relief, but acid ‘that mandamus was ‘the proper remedy to compel the corporation to execute 4 lease on a rele for taxes, and that it was no objection that relief might be had in equity or by indictment. In that case an action for damages would equally have laid. Nelson, Chief Justice) says that whenever a legal right exiats, the party is entitled to a legal remedy; and when all others fail, the afi of this may be invoked. But that case and the others before referred to, show, althoug! they do not so declare, that where a specific duty is im poved by statute on public officers or bodies, they may compelled to execute it by mandamus, although an action for damages might also lie. In Smith. &c.. pier ietors in the city of Albany vs. the Comptroller of ‘the State, (18 Wend. 059,) a mandamus was granted to compel the Comptroller to pay certain tolls collected by him for the State, and which the pier proprietors were entitled to receive from him, unless the State could hold them as a sct-off to another claim—the court holding the claim of the State to a set-off was bad. In Onderdonk vs. the Supervisors of Queens county, (1 Hill, 195,) the allegation of the relator was that the town auditors had improperly allowed a certain aum asa chargo against the town of North Hempstead, and the Board of ‘ets ooo sors of the county then directed that Summ to be levied upon the town, and the warrant for that purpose was issued to the collec‘or. The court held that no certio- rari, mandamus or prohibition could issue to the collec- tor, aa he was a mere ministerial officer; that the certio- ratito the town auditors or to the euperrisors would bring up only such proceedings as still remained before them, and could mot remove the warrant tor; and that if the before them the certificate in of the auditing of the town accounts, that was a sufficient authority for the supervisors, Whether the accounts had been in fact properly av- dited or not; and the court compared this to the case of the people, or the relation of Church against the Super- visora of Al! In people ex. rel. the Bank of Watertown, 1 16, the court held that banking as- sociations were taxable as incorporated banks on their capital; the question wa raised on inandamas, but no point was made whether that was the proper remedy or not. In ex. rel. McMaster and Harvay, vs. Super. visors of Niagara, 4 Hill 20, the Assessors had asseused two banking associations and a railroad company, and the supervisors of the county struck out the names of all three of the,companies from the axsesswent roll. The court grauted’a peremptory mandamus to compel the mupervisors to restore those names. In the Ontario Bank vs. Bunnell, the court held that if certain capital of » Bank was not taxable, the bank shonld have applied to the proper officers to reduce the amount, and the court said that if the relief was improperly granted ‘there was sm appropriate remedy.’ (10 Wend. 196.) This seems to imply 3 peculiar remedy, not the common remedy by action of trespass. These cases decide that the supervisors of a county sre not to be controll. ed as to tho amount to be allowed by them for services chargeable on the county, when they aro to judge of the value of the services, but that if there bora gum chargeable against the county and they reject it as illegal, and it is legal, they will be com- ciled vy mandamus to adit the claim and to de ow much is payable under it; and the general principle say be stated that where a specitic duty is imposed on vem, or other public officers, by statute, and they © hot conform to tute, and ‘the omis- ion to conform affects lar party only, and not ¢ whole assessment a mandamus will issue to -ompel them, If, in the cases now before the court, the supervisors bad no right by statute to order the collec- tion of taxes, according to a valuation imposed by the Tax Commissioners, when the assessors Lal imposed a smalier valuation, or to impose th ection on the valuation of the assessors, when the party made such affidavit as was wade here, then they have violated the rm to it, unless the lc, because the pabl interest requires that it should he executed in that way Jt ia better for the puvlic that the specific remedy be a removing the wrong airec!ly--than to have for damages, in which a supervisor may be ished in heavy damages for an irregularity, although erred only in fudgment, or in which the complainant may finds judgment in his favor, fruitless of any prac- result, except the payment of the costs of his own counsel. Tho citizen who is unlawfully tax- ought not to be batted by sending him from court to conrt to seek some untried remedy, notes that remedy ia clear, .{ that wricn he seeks may lawfuily be |. In the application too late, because the sa- have passed the books out of their hands into hands of the collector? It was so intimated in On- vs. Supervisors of Queens (1 Hill), but in tie city have greater powers than | In this city the assesment books or delivered to the receiver about the lst of Sep- 835 i country, are tombor in cach year (Law 1850, ch. 1Y1, sec. 27), Me. Adrianice io) Bis petition to the vuporrisors about ‘the 7th 1854, about four months after the were delivered follow: to the receiver, and it was re @ laws of 1844, ch. 250, moay (ot any mooting ab a 6 present) eorcoct ment which might thereafter be ided application for the re- Het ahonia made “ein six mou ba atter the assay nent rolls should be returned as requited by law, and provided made to the satisfaction of the su- pervisers aoe of the applicsat or other legal evidence, erronsous assessment did not result trem ae { the person applying for of 1450 tue same board by law, for good | vit and Bled with the Tax | Commissioners, snd such raduction of remission | must bo made before the collection of the and the therefor mast be mado | ‘nix months trom the delivery of the boaks to the | * poueset pee porns by law, well known, ia exoreleed by (no | correct i | had not mes expire at the given to the Board as & body keown to r ever the members of it may c! power given to that legalentity thus , that it may alter and correct the assessinents, though, F passed out of the hands of |the supervisors, they still have the power to correct them, whether the supervisors in other counties have the power there or not, The statute is, that the super- visors may correct the erroneous assessment or remit or reduce the tax. This is not merely permission to them —at least, when the mason inon the ground of an erroneous assesment, however it may be when the tax Is sought to be reduced ss s charity or favor. The term “ may” meana “ must” in a statute, where a right in given or@ duty imposed. It is a strict right of an — party to have.sn crroneous assessment cor- ree! was not put on the ground : late, or had not shown thet the error in th from any neglect on hia part, No ob- jection has i boon made to toe right of He. Aciaace nto appear ax ft on account of the pro; on John pr belonging to his wife. If it were raised, the writ | might be allowed as to that mppenty, te eens in the | name of both; er it might be that he, as liable for the ; | taxes im ‘on his wife’s real estate, would bo em- titled to alone, This brings us to’ the questions raised by the relator. The distinctive powers of asses | sors am of as commissioners, er suparrisors, may be | judged from the dutics imposed on each, The assessors are appointed for towns or wards only; they are to value each 1 of the real estate within their town or ward, and the perronal estate of each of the inhabitants of the dame place. This they can do by vie ving each par- | col of land of each owner within their limits, and by in- quiry and other means. Their information may thus reach to each individual and to his preperty, and it, is intended to and may easily have t! fect.’ From the parrow limits within which they are to act, they are presumed to be able to acquaint themselves with the value of each piece of property and the fortune of each individual within their cognizance. Under tha Revised Statutes they were bound, after making their assessment, | to give twenty days notice that they would meet to re- view their askeasments; and on application of any one conceiving himself aggrieved, to review their asseas- j, if such person had not previously made an affidavit of the value of his property, they were bound om receiving such affidavit to reduce the assessment to the sum specified in the affidavit, (1 R. S. 203 sec. 22). ‘This was conclusive on them and all others—and ac- cordingly in their return, they stated that they had | valued the property in the return at its true value, ox- cept where the value had been sworn to by the owner If the owner had made tho like ,| affidavit before the publication this waa equally conclu. sive (p. 303 sec. 17), Here their duties ended. The Board of Supervisors of the county then having received the rolls from the assessors of thetr several towns or wards, | were to examine the rolls, for certain purposes preacrib- ed, so as plainly to exclude any interference with the va- | luation made by the assessors of the property of any | particular individual, atleast so as to increage it. The supervisors, being county officers, eould not be supposed to have the accurate knowledge of the separate pro- perties in any town or ward that the assessors of auch town or ward would have—but they would have a better sieans of judging whether the whole or agiregate va- tuation of any one town or ward in the county was more or less than it should be ia comparison with other towns or wards. Accordingly the supervisors, under the Revised Statutes, were to examine the rolls of the several towns for the specific “purpose of agcer- taining whether tho valuations on one town or ward Dore a just relation to the valuations of all the towns or wards im the county,”’ and to accomplish thia purpose, | and this only, “‘they might increase or diminish the ag- | ome valuations of real estate in any town or ward by adding or deducting such sum upon hundred as might, in their opinion, be necessary to produce a Just relation between all the valuations of real estates in the county’’(id.396, sec. 31); but they could in no caso reduce the aggregate valuation of all the towna and warda below the aggregate valuation thereof as made by tho asses- sors. By law passed for this city, in the seme year that the Revised Statutes took effect, (1830, ch. 305,) all the assessors of the city were to form a board of asses- | sora, but without power to increase any Individual as- | sessment. They were to adopt such rules as would be dest calculated to produce equality and uniformity in the different valuations of property and assessments in the several wards; and after the assesement rolls should | be completed, and’bcfore the fair copies should be made for the inapection of the inhabitants, they were to com- | pare the several rolls, ‘for the purpose of ascortaining whether the valuations in one ward bare a just relation to all the wards in the city” (sec. 4). Inother words, to judge between ward and ward, not between an individual ‘and the State. They bad also the same power as the Re- vised Statutes gave to supervisors, to increase or di- minish the te valuation of real estate in any ward by adding or deducting such sum upon the hun- dred as might, im their opinion, be necessary to produce a just relation between ali the valu- | ations of real estate in the city, and the same power, with the same limitations, was also given to the supervisors, (Id. aec. 4 and 8.) So the law. continued until 1860 or 1851, when the defendants contend the law was altered. The act of 1860 (ch, J21,) did not alter the duties of the Assessors se HOF 88a county beard from what they were before. | (Sec. 10, 11.) It appointed commissioners, and required them to keep a recor of all taxable property, and of persons subject to tax: tion, and of all mapa, and to preserve the asscasmen! rolls; also te, prepare ‘hooks with proper blanks for the axsengors, and to examine and compare the assessment rolls for {he several wards for the sume purposes, and with the same powers, before stated as to aupervisors. | (See. 15, 16,17.) They then were to give three weeks notice that the “ Assessora have completed their assess- ment rolls,’ and that the Tax Commissfoners will meet to review the assessments on the application of any per son conceiving himself aggrieved. e. 18.) Thus their power to review is limited to the case where the application 1# made by a person concelving himself ag- grieved. Who that person is is shown by the next sec- tion. They are required (by sec. 19) ‘on the applica- tion of any person conceiving himsel! aggrieved, to re- view the assessment, and when tke person objectin: (evidently meaning the same person before #1 m of) has not been previously examined under oath by aay assessor concerning his property, and made aifidavit according to law, they must, after such exa- mination shall have been had, and affidavit been made, reduce the assesement to the sum specified in the affidavit.”’ The commissioners could review only on the application of a person conceiving himself agzrievad, and such applicant or objector was one who mig!t have filed his own affidavit to reduce the amount of tlie asseas- ment; the m referred to could, therefore, only be one who might apply to reduce the valuation of his own estate on affidavit or other proof that the valuation was too high, not on an affidavit that seme one else’s pro- pé-ty was valued too low; although an undervaluation of one might affect the total amount to be ted from others, it could not affect the only question then before the assessors, which was the trae value of the property of the one or the ot! As the remedy for the ag- grieved party was to be a reduction—not an increase—of valuation, the aggrieved party could only be the one whose property was tco highly valued. Section 21 shows That this eMdseit was to be conclusive on the commis- sioners, ag before it was on the assessors, for it says | that the commissioners must thereupon correct the as- sessment roll for each ward. It, however, adds that | they must add and arsesa according to law any real oF personal estate liable to taxetion which may have been omitted by the assessors, or, (av the act of 1851 substi- tutes,) which may not have been assessed by the axses- sors.” This is an additional power not possessed before, but it is mot an appellate power to increase the asses- sors’ valuation; it is limited by its terms to cases in which the extate has not been assoased by the as- seavors; to cases in which, by accident or other: wise, ‘they have not exercised their judgment. New powers nted to inferior jurisdictions are to be construed strictly. It would velo direct opposition to this rule, and to the plain meaning of the words, to hold a power fo add to an nssessmont list any real or personal estate not assessed by the avsexsors, to inclade a power to add to it estate which had been assessed by them, thus making negative and affirmative The language used in 1860—‘ estate’ omitted by ti assesaors’’—only included the case where the descr tion of the estate was omitted; the amendment of 1861 gave the power, not only in that case, but also when the | extato was described, but the valuation was omitted by the assessors. Ineither care it was not assessed by the | asseasors: and thus those words have full effect given to | without giving the commissioners power to in- valuation. As this constructioy also conforms been hitherto the policy of the law in asseaements, it ix to be assumed to conform best with the intention of the Legislature, where there is not a clear intention to the contrary. There is also strong reason for retaining the Jaw as it is, nuless the law shouid be amended in other respects. While the books are ict the hands of the assessors, the property owner may nee them, and be content with their judgment, or he may seo them in the hands of the tax commissioners on the first day that they are exhibited by the commas sioners, and then be willing to submit to the decision made by the assessors. fe would then be led to believe that he bad no more to do with the asses ment, But if the commissioners have the power which they assumed ia this case, they might, after he had ieft, and without any notice to him, without any proofs except their own opinion, reverse the judgment of the assessors: thix too they could do | in thissummary way, even where the owner had sworn to ue of his property, and as to personal estate ag wellas realestate, In the case of personal estate the evil would be glaring: for there it might bo that the owner, from the nature of the property held by him, (as tax: able stocks}, or the extent of his indebleduess, would be | able to convince the commissioners that the original | valuation was correct. It ia true that the commis- sioners, from a sense of jn tice, endeavor to give notice to owners, before (hey definitely increase their assess- mont. But there is no provision in the law to cempel them to do so; and until there ix some such provision, it would beextremely unjust so te soostewe aglaw, by a bold int etation, as to give the commiasioners power not wane to yutes one Skioes his being heard, but to reverse, without his knowledge, # judgment, lawfully made where be was beard. Aa tl commissioners have no right to increase the valuation made by the assessors, and by the increase make iMegal the assessnient, which they impore, they viotete their duty a1 prescribed by the statute, and’ shenld be compelled by mandamus, when the application is made sin due tims, to restore the roils #0 that they shall conform to the statute. And as the supervisors of this county are to correct any erro- neous axsensmont, they were bound to corset this, and should be required to do «o by mandamus. This has the advantage of being a specific remedy, directly mosting the evil that exiats; making valid thé assessment which would otherwise be illeral, and saving the supervisors d probably the oity from heavy losses, if } jeved were left to an astion for damages. ‘This applies to the property on John street. The next | question relates to the property om Third and Fourth | avenues, and other property out of town Tho rigut to & deduction there deponda on the question whether Mr. Adriancs baa fully complied with the law 60 as to make | his interested nnd Wlaned @pinion countervail that of the H fapecnsors, To do Luis he must strictly comply with the | of the Empire Stone Dressing Company, is non est in- | as high as 12 and orphan of all they possessed; I know | the Erenit ee | ena affidavit, without the examination, or without the ex- amipation being reduced to writing, is of no avail against the sworn valuation of disinterested assessors— (see. 19, 20, of the act hee ch. 121.) This construc- tion is Tease: owner is sworn to an- awer such quest’ons as should be put to him, and should be obliged to say on oath thathe hai been ‘offered two or three times as much for his property se he pro} to value it, that he would not it for two or three {imes as mueb, that his bors’ lands on each side of him were no better than and that he would give more for their lands than his valustion of his own, and that they had been recently bought and sold for much more, or if he anawered thus to any part of the examin- ation, he probably would refrain from sustaining his first valuation of his own property, by & positive affida- vit. ‘The Legislature meant thus to shield the public from the thoughtless or inconsiderate estimate of an owner, Whether the act of 1861, ch. 176, being in pari mating and of a general nature, does not by impli- prevent the affidavit and examination from being conclusive on the commissioners when they sus- tain the valuation of the. assessors, ia not necessary to inquire. If it is desirable that commissioners should have the power given by that the assessors, it would be most expediont to power from the Le- gislature. The mandamus is denied as to all the pro- perty, except that in John street, and ix granted as to it. aise | ACTION AGAINST THE RVENING MIRROR FOR Al LEGED LIBEL. Before Chief Justice Oakley. Dve. 19.—Charles T. Shelton ve, Hiram Fuller ~This was au action for damages for alleged libel, brought by Mr, Shelton, who was president, trustee and manager of the Impiro Stone Dressing Company—a corporation existing under the laws of the State of New York—but who, on fhe 6th of July, 1854, ceased to be the presi- deat of the company. The complaint sets forth that previous to that day Robert Schuyler, the president of the New York and New Haven Railroad Company, was reported to bave committed great frauds upon that company, and to have fraudulently converted to his own nse the moneys of the said corporation, and tha’ | he had secretly fled from the country; that several por sons connected with the Parker Veio Coal Company and | the New York and Harlem Railroad were reported to | have abused their trusts. On the 6th of July, 1854, the following alleged bellows article appeared in ‘the | Evening Mirror, of which the defendant is editor and proprietor:— | ‘Moxy Sonvyumaix.—Charles T, Shelton, President ventus, He has leit for parts unknown—gone into the country for his health. An over-issue of stock to the amount of $100,000 has been discovered. Paper to the amount of $50,000 was protested yesterday. The lia- bilities of the company amount to $95,000. This had been known as crack stock in the market, having sold , and having paid 20 to 30 per cent divi- dends for the past two or three years.’” Damages are laid at $20,000. Mr. Whiting and Messrs, Sunford and Brace appeared for the plaintiff, and put in evidence the paper containing the article. They caled only one witners—P. E. Z. Platt—who testified to the integrity of the character of the plaintiff, For thedefence, Messrs. Willard and Anderson set up that the article was published in the way of business, and that at the time it was written it was believed to be true; that it was published without any ill will or at- tempt to injure or defame the plaintiff; that believing it to be true, he thought that persons who had dealings with the company should hear of the circumstances for their protection; that the notes of the company were in the article, and that the plaintiff | hopedeose as alley 4 actually left the State, and had gone to reside in New Haven, in the State of Connecticut. Mr. Willard opened the case for tho defendant, and pet that the plaintiff would be satisfied with a nomt- nal verdict, and not compel them to cali witnesses for the defence. "Thia offer was not responded to. * James T. Babcock, editor of the New Haven Palta- dium, was then called for the defence, and dey that he knows Mr. Charles T. Shelton; he has re in New Haven; his reputation for honesty and integrity is bad. ‘Cross-examined—Has had no pei controvery with Mr, Shelton; has had public controversy with certain citizens, growing out of public matters in which Mr. Shelton was concerned. Q. Have you had apy personal feral with him ' which makes you feel ill towards Mr. Shel! A. Most of our citizens feel 11 towards him. Q Have you spoken to him for several years ? A. No, sir; I would not associate with Mr. Shelton; I haye known ‘him to have stripped many ® poor widow js reputation to be that of a dishonest man; such was his gen re- putation; Mr. Shelton was associated as.counsel against me on one occasion, but that did not give mean unfa | vorable feeling towards him, because he was associated | against me with » gentleman who is still my particular } frien igs ave you not written articloat a your paper against jim A. There was an effort made by our citizens to remove a house of ill-fame of which he was bondsman. Mr. Whiting objected to answer an not responsive. Wm, J. A. Fuller deposed—I have been eonnected with Mirror; 1am no connection that Iam aware of, of Mr. Hiram Fuller, of the Evening Mirror; | was as- sistant editor of that paper; I heard in various directions that the general repntation of Mr. Shelton was bad, very ‘vad; I wrote the article complained of in the Mirror. fe Q. At the time you wrote it did you believe it to be rue? A. [certainty did. Mr. Whiting objected to the qnestion and answer. ‘The Judge required the counsel to produce the statutes, as he was under the impression that the recent enact- ment gave greater protection to newspaper editers. Mr. Whiting said that reporta of courta of justiee were privileged, but that rumours tending to injure the reputation were not privile; e Judge said that that was always the law; but he was of opinion that their privilege went stil rarther. Mr. Sandford said be reason to search the atatut on the subject, and he could not find any exemption fur- ther than that stated by Mr. Whiting. ‘The Judge—There isa difference whero an editor asserts unqualifiedly that a man has been guilty of a crime, and where he states the rumour merely as a mat- ter of information. It is competent for the editor of a newspaper to prove that he received the information from a credable witness. I shall admit the defendant to prove that, not as a justification, but to show the absence of malice. After some further remarks from counsel on both sides ‘The Judge said the idea of s newspaper in former times was, that it contained the truth ; now, it is pre- cisely the reverse; formerly, people believed things they saw in newspapers, but now, people distrust things be- canse they see them in the newspapers. (laughter) Q. To witness by the Judge—Did you write the article yourself or from information you received? A. I wrote the article from information J received in Wall street. Q. By the Judge—Who told you? A. Mr. A. W. Green- lepf, a man of as respectable # character as auy in this room; he told me that Mr. Shelton had overissned stock, and gone to parts unknown; thats certain stockholder had got a peep at the books, and saw it to be so; I heard the same in other offices, but I forget where. ‘The Court said that for the present he would admit the testimony. Q. By Mr. Willard—Had you any ill will towards the gent at the time you wrote the article?’ A. Not the oo T believe Dir. Fuller did not know him at the ne. Cross-examined—I am not interested in the paper in the slightest degree, George J. Cornell, a practising lawyer in this city, de- posed—I am acquainted with Mr. Shelton; | have been a stockholder in the Empire Stone Dressing Company, Mr. Willard now proposed to show by this witness the management of the company, in order that it might be seen that the article was written from a just and rea- sonable conclusion. ‘The Court ruled againat the proposed testimony. (Ex ception taken.) ©. Do you kriow of Mr, Shelton’s leaving Now York about the 6th of July? (The Court ruled the question aa irrelevant.) Mr. Willard y posed to prove that shortly prior to the fadure of the kmpire Stone Dressing Company the witness endeavored to find Mr. Shelton—ascertained that he was absent from the city, in New Haven—that he bad addressed several letters to him (n matters of buainess, at that place, and obtained no replies, and was finally compelled to go on to New Haven, to seo Mr. Shelton, (fuled out, and exception taken.) Mr. Willard—i also offer to prove that Mr. Carnell was & stockholder in that company; that he lost $20,000 by it, and that he was induced to take the stock by the fraudulent representations of Mr. Shelton, The Court—Iam very sorry tor Mr. Cornell, but I can’t sdmit the evidence, (Laughter. ) Wm. S. Chave being sworn—Mr. Willard said he pro. posed to show that $100,000 worth of sharos wore given 1) ———— without any other consideration than ——- The Judge—I don’t intend to allow you to enter into the conduct of Mr. Shelton in connection with the Em Stone Dres: Co,, or any frauds committed by relation thereto. Exception taken ) § Do you know Mr. Shelton? A. You, sir; 1 have known him for about four and a half years, @. Do you know the character of Me. Shelton for in- togrity and honesty? The Court sald i+ would not admit any question as to the character of the plaintiff exeept prior to the pudli- cation of the articie. . & What time did the Emnire Company stop inn court rulod the quostion immatorial. (£xcop- ion. Q@ Do you know what the gesernl reputation of Mr. Shelton waa previous to the 6th of July? A. Tonly know his character by my own experience; T do not know what was the feeting about him outside. Q. Do you know from common reputation the charne- ter of Mr. Shetton respecting circumatarces othor than in relation to this company? The Court ruled that evidence could not be given of the reputation, except aa to honesty and integrity. Mr. R Meshorel depowod—That he had known the plaintiif for eighteen years; hia reputation for integrity and honesty was vory bad! Crows-examined—liad controversy with Mr. Shelton three years ago; haa not been on terms with him since. Curtis Judson deposed—That he introduced Mr. Fuller to Mr. Shelton at his (wttnesses) hotel. Mr. Willard to abow that this introluction was at the request of Mr, Fuller; that a convorsation ed which abawed the absence of malice on the part of ibe defendant. Overruled and exception taken. cas. Lorey deposed—That the character of Mholton Prior to the Oth of July wae bad. payment? tue plait newt, Ehalioe oon years: nee acts, Sa oe ey Tt ‘good man to alice abt; fe had my: @ confidence. * oe prior to 6th July, 1854, ba hina believe the plaintiff to be a man of integri- ple ent be hte never see. Se ee spoken The testimony was closed, ani the case adjourned to Wednesday a made up for the January Term, 1855, for which notes of issue must be filed on or before Wednesday, the 27th day of December inst. All notes of issue, for that and every subsequent term, must state distinctly the nature of the issue, (whether an ismue @f fact to be tried by the jury, an Posen fact to be tried by the Court, an issue of law, Such notes of issue for January Term, shall also state whether the cause was on the calendar at the close of December Term, 1854, and if so, shall atate the number of the cause on that calendar; and notes of e for other terms, shall state whether the cause is then on the calendar, and the number thereof. ‘The Clerk is directed not to enter any cause upon the calendar, unless the note of issue therein contained conforms to the foregoing direction, aud when the cause filing of such note of issue in the margin thereof, instead of placing the cause again on the calendar. Such calendar will be continued for the succeeding terms, until the causes thereon are as or during the year. uses whieh are on the calendar at any term, and are not tried or heard or postponed, shall be, by the clerk, immediately placed at the foot of the calendar, unless it is otherwise o-dered. New issues may be noticed for trial at any. term after insue joined, and on filing the note of issue, shall be added to the calendar for auch term. rules are not intended to dispense with the ser- vice of a notice of trial for each term, as required by law. When the parties shall have eod, in writing, to waive a trial by jury, the consent be filed with the note of issue, or shall be referred to therein, if already on file, and the clerk shall place such causes on a sepa rate part of the calendar, to be called in order when the calendar of causes to be tried by the court shall be taken nd when parties, on a cause being called, shall con- jury, and the court assents thereto, the same shall be forthwith entered upon such calendar in its order Ordered—That at the general term for December, 1854, the appeal calendar will be called on Tuesday of the fourth week. Ordered—That at the General term of December, 1854, the special calendar will be called on Tuesday of the fourth week. Ordered—That the jury for the January term be sum- moned for the Second Part for the 2d January next, and for the Virst Part for the 8th January. . B, H. JARVIS, Qlerk. United States Cireult Const. Before Hon. Judge Betts. in open court that the same be tried without a | | | | | bard substance; Felix Convolly gave me beck, No witnesses were ghana sympathies of the jury. "the jury ip this case were unable to agree. MANSLAUGETEE. Patrick Callaghan was indicted for killing George W. for the im whish he related rs Barrett, in a drunken row ins grog shop, on the night | of election day, last November. The following is a sum- mary of the evidence taken in the case:— Anne Barrett deposed—George W. Barrett, the de- | ceased, was my son; about ten o’clock on the evening of election day, he left my house, 78 Broome street, and about eleven he was brought home; afterhe was brought in he lay insensible, and died about five o'clock the next morning; he had two large cuts in his forehead. John Connolly deposed—I live in 86 Broome street; Mr MeConnell keeps a grocery store and bar there; I saw Barrett between 9 and 10 o’clock on election day; he friends also called and took « drink, after which came in for half a pint of brandy, and had « drink be- aides; Barrett first paid for a all round, and then Callaghan treated the company; Barrett three lasses, and threw them at }, and took a third ht hold-of his hand, struck him, ve to go out or keep still; Jaghan struck deceased with his hand; I interfered, then han got behind the counter, and struck de- ceased with a beer pint mug; Barrett did not fall; took bim out, and left him the wall of the house in Broome ; this, to best of my opinion, was between 10 and 11 o'clock; I only, saw one person hit deceased; there was no other trouble there that evening; both parties seemed to be drank at the time. Cross examined by Mr. Fullerton.—The tumblers seemed to be thrown with force by the deceased; it was the first tumbler that struck han, after the glasses Saree ghan ran at Barrett, and struck him with is 8. Richard Lewis deposed—I live im 30 Cherry street; I was at McCornell’s i soy on election evening; saw Bar- rett there, and saw him fling the glasses at Callighan, who was cut in the finger by one of them; Callaghan then went round bebind the bar, took a pewter mug ,and strock the deceased on the cheek with it; the barkeeper tock bim out, and that was the last we saw of him. Cross-examined—I saw no one kick Barrett outside; I id not tell one Fitzimmons that I saw the barkeeper ick him. To a Juror—The prisoner and deceased had no quarre) before the glaases were thrown. Thomas W. Thorne, police officer, deposed—I saw the body of deceased at the Coroner’s inquest; there was a to fire at me, but I ca and told him he would ae | wound on the forehead and one on the bead; the mag which I saw was indented, as though it had struck some mugs used | by the party the night of the election. EXEMPTION OF WITNESSES WHEN ABOUT TO TRAVEL. | Dro, 18.—At the sitting of the court this morning, a | gentleman, named Young, was brought up onan attach- ment for not obeying a subpeena, issued somo time ago, to appear as & witness in a criminal case, then before the United States Grand Jury. that he had taken Mr. Young explained to the Judge and paid for his passage on board the steamship Africa, on her last voyage to before he was served with the uotice to attend. had obeyed tho summons, his passage would have been forfeited. The court said that that was sufficient oxcuse, and ordered the attachment to be forthwith discharged. Mr. McKeon, the United States Attorney, being still in- disposed, and Mr. ‘Joachimesen engaged in the District Court, the jury in attendance in this court were discharged for the day. United States District Court. Before Hon. J udge Hall. ‘ THE CHARGE OF SMUGGLING ON BOARD THE STEAM: SHIP WASHINGTON. Dec. 19.—In the case of the United States against Iemmi Heilbuth, for smuggling watches, jewelry, &e., reported in yesterday’s Herat, the jury found tho ao- cused guilty, Boutende ner hea Supreme Cireult Court. Before Hon. Judge Clerke, SLANDER CASE, Dro. 19.—In the case of Buhler against Wentworth, rival eabinetmakers, for alleged slander, already report ed, the jury found a verdict for plaintiff of ‘Thomas Aldridge vs. the United States Insurance Com- pany.—This was an uction on a policy of insurance ef- fected on an oaten factory and grist mill, near Bergen Hill, New Jersey. Verdict for plaintiff $2,217 46, Judge Clerke announced that he would hold the cireult for the remainder of this week, and sit om Satarday, when be would adjourn for the term. Before Hon. Judge Thompson. WHAT 18 NEGLIGENOE IN A SERVANT. Cor and Others, vs. Platinus.—The plaintiffa are plumbers, and several weeks ago sold to the defendant 1wo large chandeliers, which they agreed to put up in a first class house of the latter's in Firat place, Brooklyn. It was admitted between the respective parties on the trial, that the plaintiffs were to receive for the chande- iers and putting them up one hundred and thirty-four dollars. The defence setup was that the work of put- ting the chandeliers up was so negligently, unskillfully and carelessly performed, that the defendant sustained damages to his building to the amount of thirty dollars, which be now seeks to recoup plaintifia. The defendant proved that a Mr. Law, in the employ of the plaintiff, was sent over to Brooklyn to put up, the 5 Mr. Robinson, also in the service the plaintiffs, accompanied him. In thecentro of the ceiling of the front parlor, there was a circular orna- ment, in the middle of which projected a gas pipe ca with sealing wax. To remove the wax for the purpose of | putting the chandelier, Law applied a vege me dh | followed, the cap, when a violent explosion immediately the iron pipe being at the time filled with gas. The con- sequence was the entire destruction of the central orna- ment, and the blackenIng of the celling in the vicinity of the accident. Previous to the oceurrence Law had been over to the premi it the claim of the | and witha force pump had | John McGarrah deposed—I brought home Barrett on the election night; when I found him, about 11 o’elock, he was lying near McConnell’s place, with his head on the cellar door; he was then senseless. The continua tion of this case was here postponed. The Court then adjourned for the day. ARREST OF PLIN WHITE ON A BENCH WARBANT. Yesterday officer Spicer, attached to the Court of Ge- neral Sessions, arrested the far-femed financier, Plin White, on a bench warrant issued from this court, wherein he stands charged, on three several indictments, with obtaining amounts of money from various in- dividuals under falae pretences and fraudulent represen- tations, The accused gave bail in the sum of $10,000 to appear when called upon for trial. Colored Seamen and South Carolina. {From the Charleston Mercury.} As a matter of interest to our readers, we publish ry at lh ah ag ly omg Conimittes on the Coilor- a House or REPRESENTATIVES, Coxvmata, 8. C., Dec. 7, 1854. . bit sear Ng Population, ied a fe capnot deny that a frag our por oan driven there b our or driven ac cidents beyond their control; whether hae God, no discrimination is made; come under its: tested the iron pij to ascertain if they leaked or not. Rgveral tlals weteadee, ana 14 was élatevered thas they | pong goa believe that the present lone were not tight, At these times there was no gas in the | I mischivons in their con- pipes, |The house was a now one, not yet quite comple. | ducive to tre good order of our to’ it hes been ted, although a portien of it was occupied by defendant's | long Sarioon that under the present regulations class once family at the time of the explosion, experiment to test the fact. He testified that it was un- usual to have gas in the pipea of @ mew house at that stage in the progress of its erection, and that it was his intention to apply the force through the whole house, after delebras, The p!aintiffa maintained that the damagesin w had no notice | this from defendant, or from any other source, that the gas | f had been let into the main pipes, nor did he make any | ump to the iron | eke put up the Soe | question could in no event be set off against their claim | in the action by way of recowpement, as the: connected with, and did not arise out of, the subject matter of the agreement between them and the defend- ant. Tuomrsoy J.—The amount in controversy in this case is quite incousiderable; still there is principle involved of t significance, It is a weil settled rule of law, “that the negligence of s servant, acting by his mas- ter's express or implied order, is the negligence of the master; and the master in sueh cases is Jisble for the damages consequent on the servant's act. servant of the plaintiffs, and was in tue act of perform. ing a contract made by them with the defendant. ‘The melting of the wax whica formed the cap to the iron pipe was a part und parcel of the service which they had agreed to do for the defendant. At the time Law applied the torch to the cap piece, defendant’s family were oc- cupying a part of the premises. Law well kaew what the gas pipes were there for; he knew they might be filled with gas. It was his duty, therefore, as a cautions and skilful artisan, to have afcertained whether the gag tad been let into the house or not, before he attempted to rotten the wax, His failure to do #0 co ts him of croxa and inexcusable negligence and carstessness. Tae consequence of bis imprudence might have been more visastrous. As it was, the defendant sustained injury to the building to the amount of $18. [ entertain bat little Conbt that this amount may be legitimately rey covered againgt the claim of the ‘plamtiffs, A uniform adherence to so jnat an] salutary a role of law asia ex tablished to govern such cases as this, willdo mach to protect all classes of the community from the disastrous consequences resulting from the reckless negligence we are daily called upon to witness. Judgment for the plaintitls for $116 90 and conte. Court of General Sessions. Defore His Honor Recorder Tillou. FORGERY IN THE THIRD DEGREM—RATENSIVE CASK OF OBTAINING MONEY UNDER FALSE PRETENOSS. Dro. 19.—Thomas J. Dowden was put upon trial for forging the endorsement of Auten & Bourne, editors of the Shipping and Commercial Last, to a check for $18 50 drawnon the Unton Bank, by Blackburn & Brooking. The prisoner is @ young man of prepossessiag appearance, and of the highest intelligence. He conducted hia own defence, Besides the present, there are numsrous other indigtments preferred against him, for obtaiaing money by falaoly representing himself as the agent of newspa pers, Wusiness firma, &e. The following is the substance of the evidence taken in the case » Somes W. Auten, of the firm of Auten & Bourne, No. 158 Pearl street, editora and publishers of the Saépping and Ce TAst, Aeporad that prisorer was auvor in bis employ, jor authorized to co monsy for the firm or endorp their signatures on any check drawa on the Union Bank by Blackburn ing, for $18 60, waa shown to the witness, and he that the suid endorsement ‘Auten & Bourne’? the was not in the handwriting of any of the Gro. James MeCall, of the firm of Plackbara & Brooking, No. 10 Beaver street, deposed that man resembhiog (be priaover, called at bis office on the 2h November, and presented a bill for advertia' the Shipping and Commercial List. "The witness paid the bil, Amoanting to $18 60, by a check on the Union Bank, pryable to the cvler of tho proprietors of that paper, Auten & Bours ‘The cheek was prosented to the bank and paid. Bin. bore & Brooking, wetw subsequently motied by Aun & were not | Law was the | OB forts of this deecriptioa by the supposed wrongs in- Yow Cheetos ee inion that the ri ‘our comm! are of Ii t sent regulations of our law are act only ahd Ciicieus fot the purposes eeviguods “They are Taly «ficient Purposes are convinced that bog & be (modified with cate security, and think is cailed for a3 well by our experience of their inefficiency as from a desire views our committee the ing b the House report and recommend ita ad by cabatted, loption by the House. J. Harweston Reap, Jr, Chairman of the Committee of Colored Population. Iv Tae House or noemnet aseer’| December 7, 1854. A bill to amend an act entitled “An act more eifeo- tually to prevent free negroes and other persons of color fom entering into this State, and for other purposes,” passed the 19th day of Decem- ber, Acno Domini ove thousand eight hundred and twenty-five. 1. Be it enacted by the Senate end House of Rep- resentatives, now met and sitting in General As- sembly, sud by the autuority of the came, That free negro ond pecscns of color brought into tis State, in any veseel not baund to any port in this State, but wilco shall be crivea into any port of this Sate by stress of weather, or comp: to enter thereia by motiy, or other cause whioh makes said ent-y involuutary on the part of those controlling the said vessel, shall be, amd the same are hereby declared, from and after the paseiog of this act, exempt from the operation of an act entitled “ An act more effsc- tually to prevent free negroes and other persons of color from ente; into this State, and for other urposss,”’ passed nineteenth day of December, a tie year of our Lord one eight bucdred end thirty-five, and all other acts subjecting each persons to parrecetnent: eevee thet suct free negroes and persons of 90 brought into any port of this Biate shall remaia on board the veal tn which they shall be intredaced, or suc) other place as may be seigcted for their accommodation by the Mayor or chief magistrate of the muaioi corporation, or Bate & ‘That fromacd afier the passing of this act, whevever any megro, or ‘son of color shall come toto this State, in any veel not driven into ® port of this State by & atress of westher, or com- pelied to enter therein by mutiny or other cause which mskemeaid entry involuntary on the part of those con! & cook, sieward, trolling said Vessels, ns mariner Jor apy other emoloyment on board sash ves” tel, it aball be the duty of the master, owner, or por- sow having copteol of «uct vessel, immediately on his er va) in port, fo report to the Mayor or other chief g F Hl i e H it il FE fi i a E i oa i i i —— soos snd persons ieee 5. It shall Be the duty of the sheriff, and im case Spe cba ot iy iy. or bat el enya We gach officer, then ihe sua alae of the in which such is 08 arrival of any such vessel. de- 3 & TH valuable consideration, nal grantees regularly avsigned and transfe the present company. This tite is regarded disputable by eminent legal gentlsmen who examined the subject. The company is of American citizens of high respectability elevated stending. For the purpose of securing success of the enterpriss the Ke have en gaged the eervices of Col. Kinney, of Texas, as their general sgent, and have entrusted entire mam it of the undertaking to his well known skill has alrea: wired a high re ele, faraoeg aa easel pioneer first st Chicago, and laid the ity. He then weat il and energy. Col. Ki tion a8 a He located of that flor E resources dition, will doubt as See cific in poses. It i li i : g i A i gi ul ai | : ? te : F i i Be on i | i ace f 3 £ 5 ] ; fi ! ; ik 3 E E Es§ é i a rH : : i a either geuiton tuo tight rope from ascend on the tight gallery. The farce of the low, and the drama of the German Ocean” will close the amuse me Friday evening Miss Herring takes her be Nrs.0’s Garpen—The rendering Amina, in the opera of the “Somnambulist,” has seen £0 ews A pat geben oe so entha- iia a olin clirsaermeae it. : pr et dhesaetere by Mir. St as . as Count Rodol| . Alessio, na Miss Brienti sata Burton's ToeaTre.—Mr. Johnston, « comecian and great favorite, takes his tonight. The two pieces which have been ing crowded houses € the selections for Ay! first is the I night are the occasion. The “‘ Upper Ten and the Lower Twenty,” and is the new eatirical piece, calied “ Appollo York.” All of Burton’s best Johnston deserves & bumper. Wautack’s Tararne.—The two new t “ Two to One, or the King’s Visit” and « “ men from Ireland,” sight. They even Bennett & are announced again for » Mr. Blake, Lester, Blaads Miss inne ‘avd Mrs Stevens ia the Jeadiog chara:ters Mr. Brougham, Mr. Dyett, Boca toed" My ie Demat in second, “ concludes the amusements. “4 % Mersxorowiran Tararrn—Mr. A the Sages, is anuoanced to apoear to-nig’t in one of his best obaracters, Richard III. Mra M. Ji appears as the Queen Mies Gertrude sppear in a favorite dance, after which the domes tic drama of the * Wandering Boys,” with @ goed cast, will be prerented. As Mr. Anjersun’s engege- mect cloces this week, theese who sdmize good tragic acting should eve him. € fui play of SVingiion sod fon the atta Doou, with Mr. J. Re Heott ay V1 ; Clarke as Julius; Hadeway as Denta‘us, and Mestay Virginia. The drama of the “ A: Child,” with J. B. Scott as and the drama hie teck Asbore,” are the selections for the Woon's Mixernets.—The burlesque of Blunders,” sod a great variety of meiodies, a mental and dan ing, aré announced for this evening. The hall is, se usval, largely patronized. municipal officer, andg if there bo no auch ‘KLBY's SRRENADERS.—~" Bear sant”? officer, a the nearest magistrate, the is eae i well, We wou'n a by bay tema fom, description, end capacity of any such to more 0 her ohes — be ree pegro, or fee person of color, amd auall enter | * at the audience ag tehone Into bord to the Mayor or other ohief muntcinal of looking at the person she is said cocoa focer, or msgistrate aforesatd, with two suffloiens ne sureties, being: ain the sum of on» haudrod Woor's Vanrerres.— This hall of minatretey is {cllers for encty condisioned that each and every 0 8 | becoming s popular rerort—Mr. Wood is iadofall Sree repro, oF person of golor, shell remain on dard | gable in his lone; he has a fine company, aed ofaach vessel, em shall in all reapeots any tnolava the performances are of the most pleasing oharse- of the sala Stote, and ordinances and rezaistions of - ter. A fine bill for this evening. the city or port of entey; end farther thet noslavs, | Sacre AND MisonnLANROUS Concent.—Theve is try: sae hiar a ote we or oo ta be @ concert at the Seventh street M.&. Charo _ Wotnoecow evening, fe the bens@l of Mc, Lamar”