The New York Herald Newspaper, August 7, 1867, Page 6

SS TRIAL OF JOHN fh. SURRATT. enn Close. of Mr. Pierrepont’s Argument, The Defence Desires to Make Corrections. Fue Case to Go to the Jury To-Day- Wasmiscron, D. ©, August 6, 186% ‘The triad of John 1, Surratt was resumed this morning: ig the Criminal Court, Judge Msher preesiing. The generat impression betng that the trtat will close Wo-day, (hertnb for places withta the dar was waprecedented Mr. Perrepout resumed for the p ation, amdieaid the jury would vomember that the other day, at the exllof Mr, Merrick, waking why he @id not produce the revord of the Miltary Comniission, he (Mr. Mterrepont) bandelt the orig: nal paper to Mr. Merrick, fle (Mr. P.) them stated that the recommendation to merry wos betore the President. He did not wish tobe misundersiond abowt it. ‘That recommendation wan waned byiibe members oF fee Military Gpmmasion, and it iw #0 the handwriting of General Ekin, & member of the commmssinn.gTho orignal weedrawn up by Fohn A. Bingham, cra} Bkvn was the original in hfs possession. As Meme AYor the record, he (Mr. Pierre: Ontvee i ined the original paper, 1 the paper-waw laid bel Slates aw a part of the reoo tary Comiarenion that tried (st tne weeommen) of Ure SMa ry €0) With the ase , but Mr ey make thiweapianation. es counsel for ( frequent reference to (he subject. Mr. Pierrepe sumed the consideration of the Barter nnd argued th anne Wood ai) not p Ja eartosity to son what theatre took a glanos wronn€ the babltof aitending y led etm into the withers tdentibed theatrical performance thedire, (Rho: *s testimony ven, seid Mr. Vierrepomt, a be was forced out of ir. Ashier, the Judi artber from < pation tn censide onover told at to feed's tentim smure ot sce mtu Mr. Merrick Where do you find sn.thiv eave any auch tex. taaid that R | to ity all it ie ap @ book of the 1 —Not (hei, sir, ust speak of the testi. Suriatt ashe Wagon standing hat Mr. Reed's testimony apd he then referred t Mrs Vat avsuasinaiion. b sa3 ing on there. Ig says be saw pn, and he was positive Now, how did thoy attempt to discredit Vander- Y Id they do it by show! at he did not go to eoncert hall or that xo to the Paymaster’ OMce” Not atall. But they w «to discredit him by abowing there was no perfor ce called Metropolitan Hail on 1) street. about D #treet or an afternoon p ali the halls on the north «ide of the avenue and on D street, but they did not say a word about Teutonia Hall, whieh ts on the south side of Penneyivanta avenue, Van- re soine place, but be c Hall ta th ‘that Mr. Plesrepont thea referred to the testinony of Johu Lee, who swears he re. cognized John Surraiton April 14, and he says Surratt Lad then no goatee. This is in harmony with Wood's testime nd there if no testimony bere that is not i all other testimony, weare to seeing Survatt; he Js not positive w he thinks the prisoner is the man. He had walk old, und there he saw. Surratt, Witiard’s with Goleman testified that ov the afternoun of April 14 be saw Booth in conversation with ® man who be at this trial thinks was the prisoner at the bar, Taitanit's te,timony was here read. This testimony, Mr. Pierrepont contended, ni confirmed Sergeant Dye relative to the licht tn front of the Susan J: theatre. The testimony en referred to, and Mr. Prerrepont ‘were more apt to tell th than the more educated, and \( was well known (hat # plain, Je wtOry cannot be embarrarsed by auy cross-examina. ion, (Susan Jackson's te-timony rew Daye that ‘on the Friday of ih ot Joun folio Ban, who washed jurratt and had a ec . gcenrred on April M4, aus not on April 2, as conusel fo attempted to show, it was in proof thaton April rats left the house before seven o'clock aad did not to be brought ent Friday thats bight 0 re, Surratt the assassination th nation she insisted "pon wuld Dot be embarrassed tn tel house on Fri Y jou, a clerk ” of Yerd’s theatre; testimony of Ser presence her fice, this «Dye. Te. was the earhest witnesses jy this ease, and vei he has not been /mpeacts It te true something was said nto . He did no. know wh & paper, and here preferred the charge ope insel did not Koow oF this wid not have done such stice ae had fa the alidayit against Dye. adelphia has e ease. errapont #eid be knew the gen or he would mot h leman dit not know done Dye injustice. sid be done? fe tt wi evidence Up tp ‘hat neighborhood the f the night}was qui Mtile, the Now, we that three men see Booth theatre; Booth goes into nk when che last time is e aod Kills the Prest Pp jefore the and this night, when he heatre. is selected £ ry y say that a man connected lowed to eee: i time that we p’ of Jet COunee! AMY Ub of an ordi Bary wan. The murder hae deen committed, and Bovtb end Harold feeto the house of Mre. Surrats to get th Brepared for them and id wita them tl almost nasaee’. Assassiuated, or it, Dat Tie now well hed back No jury hae Beals etal” see 6 we diebar Mr. Pierrepon' then epoke of Surrai’s Might. and + that the borse ereu by Mr. jale was (ue oon bired by 4 tbat it was ridden by Joba 4. Surra way man riding the horse was au cous e pared up! tao American deteet’r bim bas been f, f hina next on th jerchiet ‘oun oe jew: ‘om was Sivm ‘ee to" ive arrival of ibe iad when his dived: after be do work; ober that Rurratt told 8. Mi Fane The wit tet Before Mr 7 Hollebao badsany ehance to lose bi Pieerepont bere, at bail. iwelve . that be would net be abie to fuisb befere reeees, Court then took a recess for half eembling, at & quarter past one o'clock, pert rerumed bis argument. Me eed Wat Mr Dart bad sbown that the train in which Sorratt wae reached Montreal ava quarerto teu, tur Surratt did uot continue on that train, bot left ttat St. Albans and ther @irection, and did not reach Montreal votil wads. Joho ty ey ua fe might of Apel and he. is F dal ten oven AM ube rein the sume thne that he My friend’ physical im. the way again, He tecgery of am Englishman; and the next we hear of him he Kirt up at Moptreal, where he reaisters his name on vbe Lote) books, Mr, Peerrepont read from the testimony to the aud remarked that the prisoner then went across V.¢ ‘an’ was seereted in Porterfield House. 1 ‘was eu) hat place. out of that all this time he was in Elmira, Wilh uke y tel! Ved and secreted himself from ol roan,” Mr. epont here read from the history of ‘and Abel, the curse of the Almighty upon the former, making itive oa the He ere read from vhe testimony of St. Marie as to the manner of Sur. ratte geiUing, away from Wasbingiom and the hard ime be of %, Ginguived as “an Engushman, with & scarf on thus did be escape and attempt to sh on Hobart. Vt bas at han fiction,’? ‘The attompk of the defence to prove that as Dying by ry mony of Gifford to vhow that Dye was not on that orm, was a dead failure. atforn, was a They advo wrought Hess v0 show was tame, wae the ‘raon whom Dye bad heard eal! the time, He were read from the test- ny of Hess, concerning his part in the play of (he eve- he generates another, ti!) a thousand he are told. the difference between ono lie an afraid of a lero the witness stand. ‘of the time of uight, said he was wanted mies, and immediately went back to yf yet, OD Cross .exemil that mp was nol required until after the play was over. tu at fiction. ‘To show that Dye and Cooper were nog on the Hess atl if they tati beon there Gifford would ren made them get off. Mr. Pherrepont here read from the eriptures concerning the beanue of false witness, aud ‘suying, that false tesUimony never agrees, It cannot get togethér nor keep that way. The testimony of Dre and ‘Cooper was adverted to concerning thelr pasting the honse oO} Mmm Surratt. ana the wtterupt of the defence te contradict dt bythe testimony of a Dutchman, who was ta a house anodier stree Tiix man Was #itting on the slaps, and his (es Uumeay was brought to show that theconversaton, as related by Dye, kd not tike pisce. They did not place his wife on the stand; if they had the would lave stated that sh hor husband to bea that might. and that previous taken « quantity of lager. ‘They also brought Mrs tthe stand, who said she came outon the poreh fret. and then aflerwards she weutto the wi many were passing by. The Dute! Nira, Lambert says it was between clock when abe talked with the soldier; meant to be truthfnl amd stated positively the ‘dour. The President was murdered five or ten minutes after ten o'clock. and by the time Mra, Lambert with he soldiers at her window, Dye and Coop. There was auother phy *Y, the counsed, and t Trom Montreal to abe cal fmpossibiltty attempted to that wax the question of getting Su Klmira, and coiug over i all they ually brought hin there at eight o'clock at night on the 13th Before that they iad him there ail the time, talking with the people on the day of the Ith. ‘The governinent did not try 0 Ox bun in Blnira; him all the time in Washington. ir. Bradley here interpored, saying the proseeution brought Surratt down the road from Albany, and the de- fence did not think it necessary 10 advert 10 the Oguens- burg road. Mr. Pierrepont resuming, said the prosecution put Surratt ey found hitn in Etmira and brought bim to Washington, Mr. Pierrepont here read from the ‘testimony to abow how long Surratt was at St, Lawrence Hall on the 18th, and said there was evidence to show what tine he reached there. The fact was, he was at Elmira and came to Washington, reaching here on the Math. Mr. Pierrepont here from the testimony of Boucher, who first saw the in St. Lavonaye. Why did he come and go by the name of (hs occasion was there for itt A gitered as John Harrison, If he was de from public view and go under an as- This man Boucher seeretes him, and mouths as in Rome, and the head of the Church y, giles gave him up even d by the United States anthorities. Neither ny one of that noble ehureh tolerated that in- und the shame which Boucher las brought uireh will be wiped out by that noble Surratt left Boueher's house about the last nly, and then went to the house of Lapaire. Why did be do this’ All those who had been arrested had been tries ‘is mother was, and he, an Surratt knew whet a led. Would not any honest be jon into his alleged erime? t_he does not appear, but in disguise gu Peruvian and Sies to Rome— ge and, he ‘understood not. Why he ty Fgypt? Was he an innocent man? He fs not innocent; Boucher should “have been wise and stayed away as Lapnire did. 1 have been tnforied — since Thave been speaking that 1apaire has already been pun ished by his can *, Plerrepont continued to read from Ri testi raed counsel ¢ y saw “Father Boucl aker thought he never should confess to “Father Boucher.” There is something wrong abont him. He would not long be a reproach to the church; they will soon Yet when peace has been re- on board the ose Innguage to Maige and ther Boucher,” take cure of tis man—that the jury might be aure of, Mr. Pievrepout here read from the testimony of MeMMlan, and remarked (hat it was the history of all crime that it was compasred at some sometimes by — suicide, sometimes by fight. by words and statemeuts, Upon reading of * the Mr, Pierrepont said the s the world to escape from crime. but could not escape. ences of his ¢ he now rougut before this jury for trial, and it led with them to way whether he was iimoeent or guilt Tu the providence of God tt had been « Jurors to decide upon bis guilt or inuo- whether this was a crime that had been com. jor wheter it Was.all right, Mr. Piervepont anid—T am now nearly done, but before closing I pass to the alloi attempted to be proved by the defenes, which he charac terized as the weakest he had ever sten attempied ina court ot justice. It was too tmposuible to be true, There is no doubé but that mistakes had grown ont of that fact. Here Pierrepont read the testimony of Carroll (o show that on the books of the house as to presence in Elmira, and that Carroll ken iv keferenoe to any other date outside of that Re then adverted to the testimony of Mr, Stewa to show that Stewart could only way that Surrait was in the store op the bith or 14th of the inonth, and that he could not tell which of those dates It was. The tesumony of Atking, the bookkeeper at the store, was also referred t, who o only Ox the date of Surrat by the enizy Jo the books of cash taken to pay the ¢: or of one of the firm to New York, and that i¢ was during the absence of chat partuer thet Surratt visiied the store, which was either the 13th or ith of April, Mr. Pierrepont he could find no fauit with these witnesses, for he believed they testl- ied honestly. They produced a portion, which he read, to the testimony of Dr. Bissell. Mr. Pierrepont characterized the testitnony of that witues: y lief. Dr. Bissell was the only witness who testified post. tively that he A Hof Bissell’ a0 word of truth init. W mony of Mr. Wetmore. » lawyer in New York, who testified that Dr. Biskel: was oor in Eltuira on tho 4th of Apel, 1s6, Dit was in witues.’ oflice in New York, and was consu'ted there on that day by Mr. . the “counsel i Railroad sul yw Uhat Bisgell’s c anvassed and that. hia re after withess followed t . from place to pla he bore a nong ali Who kuew hima, They ali gave him worst reputa Mr, Pierrepont remarked, that be ever heard given T could see through by ing perjury There was no through. I had no expectation of not express my feelinw T have never seen . nor our enildres will nent is lor the beaelit of society. We ood shed In this iand. If you, in your the Soldier's Home, “yon Y thousand are watered by the t k you from thetr yoa me On earth again they thought 4 plotter of assassination was to go What did they fight for? What wonld the Pope of Rome say, who gave up this prisouer before any demand was made, if y “not guilty: But the blood runs cold at ht, and there aorable rel would aot utter free ow erin T have nest men nt uf With that this man case be ie to every lawer iu the land for any ° tod ts found guilty h proved guilty who las Gor together and £ re id will give ay with those “who with merey’s life,” Nr. Bradley said there were a number of corrections which he desired tv make in the statemaut of couasel on the eviden My, G id that if the Court ‘ow, and accordingly CAPTAIN AYNDERS NOT A PRIZE FIGHTER, TO THE EDITOR OF THRE AERALD. A malignant and unqualided der appeared in some of the Philadelphia papers on the 25:h ult, to the effect that [had been engaged as one of the principals in a brutal prise Ggbt near Philadelphia, and that both com- Datamis were horribly veaten, kc, This report did pot come under my notice until some days after its publica- tion, and a* | could not well obtain legal redress without applying to the Pennsylvania courts, { had concladed to let it pass unnoticed. Those who are best acquainted with me know that I bave never been engaged in prize fighting, and that aothing could induce me to do 90 But friends have written me from different sections of the country requesting me to publish a contradiction of this maiicious report, which leads me to betieve that it has been extensively circulated; and as there are thou. sands who know me only by newspaper reputation, and (m many iastances from just such scurriioua re] the one alluded to above or from others of « similar character, I have therafore concluded to state to the Public that this report is'a gross, unqualified falsehood, concocted by some contemptible wretch for the purpose of gratify ing @ personal of political enmity, whose cow- ardiy ‘te prompted him to adept this aseassin’s attack, ISAIAH RYN DERS, MORE COUNTERFEITS ON NATIONAL BANK NOTES, Harnisrcns, August 6, 1867, George Garman, a professional trader, ineurance agent, and at one time @ constable in this city, was bound over to-day for having in bis possessi i > Poni $10 notes om the Third National eae of Poi in STRME OF BOSTON BRICKLAYERS, Bostox, Augast 4, 1967. A large number of bricklayers employed om some build. Ings in course of erection have Knocked of work because they allege; that their bosses employ more apprentices than the re) Bricklayers’ Asser iat lovers. eons entoling to the Gruenta cd , 4 help enough. ALLEGED DISHONEST DOMESTIC. Bostox, August 6, 1867, ly of for stealing $616 from Ireland three weeke Rate Mathews, a domestic of Brookline, ts ia r Kate ianded from joy or. An injunction should not be issued to prevest ® conse, queptial injury from the careful exercise of &@ Fight a by the sovereign power of the State or authorized by competent lawful authority. of Withams va, Nbw York Central Railroad this doctrine is clearly laid down, and 11 bas never since been reversed. My second point is that the plain. tiffs have no standn ip court, because 00 act has been Kgs ory — pi ciagrotay ae they cau specify, which wi we them oi pen A ‘acquired or which they would acquire hereafter. ‘The Legislature in its wisdom created the Board of Audit to adjust outstanding claims against the city and county, and this Court will not presume that the gentlemen who havo been appointed to that Board will allow illegal or unjust claime without proof by some act having been committed on their part, or by something of the kind being proved to be in contemplation. In the third place, he had to say that the Legislature had the power to cre- ate the Board of Audit, and not only did the constitution allow, but saan sanctioned such creation. I! this Board wag, as he thought it was, a focal inferior court, it was expressly provided for im the constitution of 1546, The counse! then cited numerous passages in support of this propositien. He then made a@ jengthy argument, contending that the Governor had power to fill vacan- cies created by the resignation of yabtio eticorn Attorney General Martindale, Presenting further arguments in behalf of the Board of Audit, said be con- gratalated the public and the Board wpon the opportunity whieh bad been afforded of explaining the grounds for the exercise of that legislattve power which had clothed the Board with its present functions. He said he did not doubt but that he should succeed im disclosing both to the Court, to the counsel, and to those of the general public who might be interested, that im the enactment of this jaw there bad been no excess of Jegislative power, and that in the appointfhent of Mr. Stewart to fill the vacancy which had occurred ‘in the first organization of the Board there had been a strict conformity observed by the Governor to the pro. visions of the law. ‘The first proposition im this argu- ment related to the appointment of Mr. Stewart in the place of Judge Woodruff, who, after associating for a little while with the Board, declined to proceed further. The nature of the duties devolving upon the Board were public, and there were no private relations established by the terms of the law between the mom- bers of the Board and any of the parties who might appear before it as claimant. On the other hand, the authority from which the Board derived their power was the legislative authority of the State, There- fore, whether determined by the manner of appoint ment or by the subject matter to which their duties related, \t must be seen that those duties were public in their character, and that the members of the Board per- forming them were public officers. If this were true, the rotirement and remgnation of Mr. Woodrot, one of the original appointees, threw upon the Governor of the Stato the duty of appointing another officer to fill the vacancy thus created. The Attorney General cited from the various statutes upon the point, to show that the Governor was empowered to fill all vacancies which might occur in the public service during tho re- cess of the Legisiature. He continued to say that the creation of public officers, such as he had shown tho members of the Board of Audit to be, imposed upon those gentlemen the duty of taking the oath preseribed by the constitation for all public officers, Every mem- ber of that Bo rd, with the exception of Judge Woodruff, had taken the oath and filed it in the proper place, In THE CouRTS. SUPAEME COU's?—CHANGERS. The Beard of Andit Cane—Argument on the Mo’ jon to Disnolves the Injunction=Decision Vieverved. Befege Judge Barnard. * Joseph B. Varnurs, Jr., a Member of tee Common Coun- cil, dc, agains! | fauncey M. Depew ef ad (Vity Board of Audit), —The aromeut on the motion to dissolve the injunction grenied by Judge Barnard op the 27(b of July, restraivaing the Board of Audit from meeting, au- iting oradJusting avy of tho wnsettied clams against the city véAeb might be brought before them, took place before tis court yesterday. The array of counse) en- faxed im, the case fuily,bore out the prediction in the Herattyof Friday last, that a tremendous effort would be wade to secure the dissolution of the order of restraint, and comprised among others two members of the Board—Attorney General Martindale, Judge Bonney and Rufns F. Androws appearing for the Board, Recorder Hackett for the city of New York, and G. F, Noyes and Joseph F. Daly for the Citisens’ Asso- ciation, which appears as plaintiff, through one of its members, Mr, Noyes in opening the case argued that the plain- 1iff euos as trustee of the property, funds aud eflects of the city of New York, being a cotrustec, with the oter members of the Common Council, of the same—his Joga! standing and capacity and duty to bring this action being expreasty declared by the Legislature in the Laws Of 1864, chapter 406, section 3, It is the province of courte of equity to aid public or private trustees in carry- ing out the objects of their trast and protecting the trust funds. The trustee, the plaintiff, is bound by law to guard the trust property as his own, and if his co- trustees neglect or refuse to do their duty in this respect he must do it alone, aud the couris are bound to help him. In this case the cotrustees of the plaintiff, though requested, havo negiected to interfere to avert the Unreatened danger to the trust funds'committed and to be committed to their charge. It belongs, therefore, to the plaintiff to seek the aid of the courts to stay the aaticipated waste, All officers, though net expressty authorized to sue by statute, have a capacity to sue com- mensurate wita their public trusts and duties, (4 Hill, 136.) The waste of the property of the city of New ‘York and its inhabitants is the necessary result of the ‘unconstitutionality of the law creating the Board of Audit and the idegal appointment of a new memier of the Board not contemplated by the said law. Every claim which the Board decides in favor of will be paid; every claim which the Board rejects will be sued over again; for the adverse decision of the Board will be no bar to a recovery, Thus the city has everything tg tose and nothing to gain by being sent from the regular coorts of law to thia new tribunal. Tho city will be exposed to double litigation, and its perils ind expenses doubled without any corresponding Denofits. It ts best both for the city and the claimants ‘that these questions and doubts, which go to the foun- dation of the Board and its decisions, should be decided at the outset; otherwise it will be the duty of the Cor- poration Counsel to contest every award of the Board before payment, The result of this would be ruin- ous to ciasimants, who would have been at great expense to prove therein claims before the Board, addition to that, Judge Woodruff had signified his inability, by ‘reason of professional engage- ment, to discharge the duties which had been devolved upon him. He had indicated this to bis fellow appointees; notice had been transmitted to the office of the Secretary pf State at Albany. There had been no- thing like irregularity in any sbape im the appointment o! Mr. Stewart by the Governor. The counsel then de- nied the proposition of the opposite side that the Board only to be defeated in a judicial proceeding. | of Audit could only act as a whole, and that the refusal It would be ruinous to the city, which would | of one of their body to act invalidated their official ac- have to institue then a separate proceeding for | tion. He explained that as the act was originally framed every such claim, [he Board of Supervisors, which is to raise the money; the Comptrolicr, who is to draw the warrant; the Mayor, who js to sign it; the Chamberlain. who is to pay it, bave ali the right, and it will be their duty, to test the constitutionality of this Board of Audit before consarrosting the waste imaugurated by its action. The couris of justice are open to every honest claim against the Corporaion. The prospective evil is not cured by the parties permiting the Board to pro- ceed and pass judgment, The claimants are forced be. fore this new tribuna!, and tho Corporation is compelled to follow them there. If they submit, under a mistake as to their legal rights, they will not be concluded by such submission, This forced submission will not be subject to the rules governing arbitrations; for the oun- dation of resort to arbitrainent Is consent, The Corpo- ration has given no such consent; none of its officers have the power to bind it to a submission to arbitration, which is an irrevocable contract. In the Mayor of Brooklyn vs. Brady (1 Barbour, 684), the Brooklyn Common Council had a right to make contracts. in New York the Common Council can only contract up to $250,000. By section 38 of the charter of the city of New York, the contracts the city can enter into are regulated, and these for work and supplies. When difficulty arises in respect to these the courts aro open to adjust them according to the provisions of that charter. The very claims before the Board of Audit ilustrate the point, Almost ail of them invoive the question as to whether, in fi rs the Corpora- tion exceeded its powers, The truth is that tho regu- 18 was intended that the Board should consist of three members only; but & pumber of centlomen in this city eucceeded im inducmg the Legisiature to enlarge the Board of auditors trom three to five. In making this change, however, they failed to introduce apy alteration ia the other provisions of the bill, That it was not originally intended by the Legislature that ® quorum ehould con: only of allthe members was cleariy_seen from the fact that when it was co#tem- plated that the Board should consist of three mem! it Was expressly stated that the action of two sbouid be valid, Tho attempt of the opposite counsel to lay down as a principle that the Board to act legally, must act with a sitting quorum of all its members was not consistent with @ fai interpretation of the statute. Geveral Martindale then went on to defend the me 4 of the action of the Legislature in creating the Board of Audit, Although, he said, he had not come there to make an elaborate argument on that point, yet it was proper for bim to assert the existence of tue power in the Legisiature, under the constitution, to take suc action—a power quite adequate to be interposed in an emery such as that which had arisen in the city of New Yerk, His proposition was, that it was compe- tent for the iegislative authority to appoint a Board of Auditors for the purposes defied in the act That act provided for the levying and collection of certain taxes in the City and county of New York, and the applica- tion of those taxes to main agen Lg 4 © wit, among others, the adjustment and settlement of legal or equi claims outstanding against the city of New larly established courts are the only tribun: intended | York, The act, therafore, in its whole , Was one of by the constitution and the laws for sottling such ques- | gpecific taxation, and for the application of the moneys tions. The law creating the Board of Audit ts in viola- | thus collected. Nothing bad been more Cully or explicit- tion of the constitution of this State, because its effect is | ty determined by judicial precedents than the authority to deprive the Corporation and the claimants of the | of the Legislature to pass euch tax laws, and to desig- rights red to them by section 1, article 1, which | pate commissions, a board of audit, or whatever name says:——“No member of this State shall be deprived | might bo affixed to it, to adjust and fix the sums and ob- of any of the rights or privileges secured to | jecig to which the money should be applied. It was un- any citizen thereof, untess by the law of the | questionably true that the duties devolving upon the Jand or the judgment of bis peers;* and also by | goard of Audit ired an examination which section two of the same article, which deciares:—“The trial by jury, in all cases in which it has been heretofore used, sball remain inviolate forever,”’ and by section six of the same article, which says:—“No person shall be deprived of life, liborty or property without due procoss of Im The act in question compels the claimants and rporation to forego their right to bave their con- troversies adjusied by Cheir couris and a jury, It insti- tutes a tribunal of Ove men, part of them non-residents of this county, and declares that if any person having » claim against the city shail not present such claim to anal within three months from the passage of the act he shall be forever barred from prosecuting the the said tribunal shal! find n has a just and equita the Supervisors shall amount of the same by tax, and the Comp- troller shal! pay it to the claimant, This process for req was, toa certain extent, judicial in its character, and that there were limitations imposed upon judicial tribu- nals not imposed upon this They were not arbi- trators, bound to proceed under the rules of the com- mon law; they were under no restrictions except such as they had voluntarity agreed to among themselves or had been imposed upon them by the statute making lic officers, But they were vested with that legislative authority which in the exercise of ite discretion bad to apply any rate of taxation to any part of the State, if it were deemed necessary to discriminate, to meet and satisfy any claims which they deemed to be just, The counsel then altuded to the decision of Chief Justice Marshall in the case of McCulloch vs, The state of uaryland. The Legisiavure bad simply in the present case recalled to itself certain powers of taxation which bad been before exercised by the corporation of New York, and also its power to adjust aud examine claims i comiiseatiug the property of the Corporation and the | qgainst the county, and to transfer toa new board certain taxpayers, on the one laud, and tho claims of indi- | fngacial duties which had heretofore been delegated Fiduals on the other, 18 not part of, nor tolerated by, the | to the Corporation. It was objected by the plaintiff's ‘law of tie land” mentioned in section 1; nor is \t | coumsel that the decision of the Board against claimants the “due process of law," mentioned in section 6 of the | wilt not preclude those claims from renewing a prosecu- constitution, The total deprivation of trial by Jory | tion againat the city or county in the Courts of Equity, to the parties is fatal to the act, aud such laws, com- polling the city of New York to sui Buch legislative commissions ag th declared unconstitutional by ot court, Itis dificult to say what the Boar bersare in the contemplation of the nstitution, or whether such a Board was ever contemplated by it If the members aro to be considered as most But such discontented claimants could only have their claims satisfied from ‘he taxes levied and collected un- der the direction of the Board of Audit, and no court could compel the Board of Audit to pay them out of such fund, and indeed nothing short of the same legis- lative authority which created the Board. Again, it was said ‘that the claimants would not con- sent to submit their clams to the decision of the Board, He was bound to say that if gentlemen had #0 little confidence in the justice of their claims that they refused to come before the board within the short statuie of limitation allowed by the act he taought there would be little chance of their ever getting any remuneration in behalf of them. The counsel then pro- coeded to dispute the legality of Alderman Varnum appearing in court at ail against the Board of Audit, con- tending that he did so simply asa private individual ‘aud not in his public capacity, and cited cases to show that the decision of the courte bad aiways veon nit controversies to have been bers of thi and its nem of the constitution, then the prosented :—Civil oflicers are divided into three classes, Jing (0 settled autuority, viz:—Politicnl, ach as the Governor, the Mayor, &e. : which includes al! whose province it ix to de- cide controversies between individuals; aud m.ursterial, such ag sheriffs, &c. The objections’ to the Board of Audit inf respect to all of the: portions are now to be considered, and will be found ‘aialto its © withiv the mo: following considerations ality. The duties of the Board are wholly that no private porson had a right to take up Contemp tated bythe the Utigation of public question. In additron to this, ss Pieces tee seoens he claimed that if the Board of Audit were itiegal, he, which declares that al! count officers must be elected by th city, town or vilinge, or mist auilorities thereof ax the Legislature may direct « Board of Audit must be sbown to be a new oitico; and it appears that the auditing of city claims ig a duty which bas heretorore been performed by the Comptroller and the Common Council. Thi« act then simply transfers this power from these officers, in whom it was constitutionally vested, and gives it to another set of men appointed in violation of the consitu- tom, But the objections to this new triounal are still greater if it be considered as a judicial office, The daties Of a board are simply to hear avd decide covtroversies between the Corporation and its creditors, This is the precise definition of @ judicial office, which the constitu. tion provides in article #x, section eignieen, stall be filled by election, &c, The act is also vod by boing In conflict with the constitution of the Unived States and impairing the obligation of contracts ia abridging the remedy of the city and the claimants. Ine vast powers of adjudication granted by the act in question tow ‘new tribunal, if this Board be considered as a new court, are not permitied by the constitution of the State, The of Audit is an office, and its members are not officers in constitutional and legislative sense, There 1# no term of oilice Axed ; there ie DOOath Of office required; there i8 bo provision for filling vacancies, No office i# created tho first incum- dents of which were so named by te act. This being the case, tho refusal of Lewis B. Woodruf to perform the datios of the trust makes any act of the other four per- the Attorney G-neral of the Stata, was Lue proper officer to test ite validity Inthe courts of the State. He con- cluded by saymg that the Board of Audit rested upon tue impregnable foundation of legisiative authority to pass any tax law it deemed just to meet and satisfy eub- jects merely charitable or of public benefit, or just and equitable claims upon the Fae ood a ll ao ‘Mr, Noyes, in reply to the nsel, said that andar thalaw of 1n6!, which after aif mupty fe-enacted the com! law, Mr, Varnt as ati bad a fect right to in court and contest itu. tionality of the Board of Audit. A trustee, under that statute, Was empowered to enter into litigation for the prvection of all trust fwnds from waste, And it was cortainly a curious doctrine to contend that taxes raised in this city were not trast funds. He supposed that inasmuch as al] the money, with the exception of a litte, en franchises were raised from taxes, and nasi as the statute deciared that ail the fut ty, and effects which came into the possession Board of Aldermen and Councilmen were trust funds, be should think common sense would show that taxes were trust funds of the city, and as such liable to waste, The counsel thea oded to deny that the Roard of Audit was a judicial body. If it were, he asked, why was there not the power of appeal to a higher tribunal, the same as existed in ail other courte? The meaning of the act giving create local inferior courte was plain. meant and had always bitherto been to local ogeletne dee 6 courts of justices of the s concluded by reiterating the argameats be fons invalid. It is am indivisible trust which cannot be executed by less than ali ive, The attempt of Whliam eee eee arg oa aon a B. Stewart to act in piace of Lewis B, Woodratt is wholly a ae ; Board, Uplawfal. If the position is not an office, but ® personal | Fe0my ear roes Orne es teott the & reserved ite decision. act constituting it. iaten under it ‘tended to do. t ure to provide for filing vacau The best test to apply to the question as to, “membership” of the B ie an ‘office’ sit@tional or legislative sense, im to inquire: Mr. Woodrufl liavie to Ss by any ciaimant who files bis claime with the Board of Audit for not pro- ceeding (0 bear and decide sach claim on the well be principle that ali public hyn od liable to suit of persons injured by tueir refusal to perform the duties of their oilice’ or is Mr, Woodruff liable to One and imprisonment for misdemeanor under the provisions of the Revised Statutes, UNITED STATES DISTRICT COURT. ‘ondem lous, Before Judge Blatchford. ‘The following cases of condemnation were passed yes- terday :— Distitlery, 227 Seventh street; distiliery, 412 West octamer ry Fs Lf AE . Crosby street; five } distillery, Fourth avenue and 1334 street; distillery, 21 Chrystie street; fourteen barrels of distilled, foot of ‘West Fifteenth street; man tobacco jufactory, foar, title si street, sixty-six caske distilied epirita Mr. D. G. Rol- one, section thirty-eghtr The act tins, Assistant United States District Attorney, appeared must be siretiy construed, in | for the government of common law rights, and because This court wili sit for the remainder of the week for it deprives all partics of remedy im the courts of law. | the transact of business, when it will be agaia ad. The closing remarks of Mr. Noyes were based upon the | journed, foltowing tions —Injunction ie the proper remedy thie , Decause it will stay the commission of the BANKRUPT COURT. evils Gaticipated without unaecessary trou pense. nction may be granted to stay th Audit from ng further, becaw not State and y, that ro the Board of Audit wii) en ipreparabl; and to the taxpayers, mem! thereof, Petitions Filed Yesterday. KE. & Locke, tabilities $35,000; Ebza Altenheim, lia- 68 $17,000; both of New York. Coungei, Mr. in James. Hackett, who on debalf of the f city, then said a (ow words, that in bis opinion COURT OF GENERAL SESSIONS. action Was premature, ae DO bad re oa ane the ulted to the city from the operations of the Hoard of Audit: Mr, Rafas F. Andrews said hie first point was that it was @ Wel! sestied principle of law that the party appear ing for an injunction must have some vested rignt, legal of equitable, which ust satiety the Court is to be interfered with if the injunction is not granted No suet Fight bas been interfered with. vor is euch ference threatened against the compieipanis |v (be present case. At the opening of the court yesterday morning the panel of grand jurors was called, and the requisite num- bor of gentlemen having answered to their names Mr. Robert T. Woodward was selected to act as foreman. Hie Honor the Recorder then briefly charged the Grand Jory, calling (heir attention to the newal statuiory pro- visions, after which they retired to enter upem the dis- | done to avoid that of their duties. Later in the the Grand Jury brought in a number of sndictmen or ye the priggners, on guilty. pleaded y James charged with borgleriontly entering the premises of John =. ford, 21 West Tweifth $200 worth of clothing, pleaded guilty to an attempt at burglary. He ‘was sent to the Penitentiary for two years. Wm. Mykins, who was indicted with stealing $80 in Treagury notes from Jacob Maack, 386 Seventh avenue, on the 15th of July, pleaded guilty to an attempt at grand larceny. The prisoner, being under sixteen years of was sent to the House of Refuge, “Jaroos Foleata, against whom an nee rige grand larceny was ferred, be being charged with stealing $72 00 the Oth of July from Heury Everbardt, Rleaded guilty to ap attempt to commit that offence, was remanded for sentence. The court will meet this (Wednesday) morning at ten o'clock, at which time all the petty jurors bad better be ip att 80 ag to avoid the fine which will beim- Posed for bon-attendance, COURT CALENDAR—THIS DAY. Suprewe CourT—Caamnnns.—Nos, 6, 34, 60, 54, 55, 57, 58, 59, 87, 92, Call commences at No. 94. ME YACHT LADY HIERNER DISASTER. Investigation Before Coroner Wildey Yester- day—Carious Conflicting Testimony. ‘Yesterday morning an inquest was held at Bellevue Hospital on the body of Patrick McAllister, who lost hie MWe by being drowned when the yacht Lady Kierner was run down by the steamer James W. Baldwin, on the morning of Friday, the 27th ult. A jury baving been empanelied, the following evi- dence was taken. The owners of the steamer, Messrs, Romer and Tremper, ag well as the captain, J. H. Tremper, and the pilot, William Mozier, were aided by counsel. Joha B, McGrath, on being sworn, deposed that he lives at 666 Ninth avenue; he was on board the Lady Kierner, a small sloop-rigged yacht, of eleven tons measurement, at the time the catastrophe occurred; he was captain of her, and had had considerable nautical experience for over twelve years in sling vessels and steamers; on the 26th of July—he remembers the day wWell—at a few minutes past twelve o’clock, midday, he and a party of friends started from the wharf at the foot of Fifty-first street for a cruise to Riverdale; the of those ou board were himself, Jobo B. MoGratl brother, Hugh McGrath; George Weldon, William Blake, Washington Gregory, Wiliam Chattaway, Heary Goes, Joe Mackintosh, George Chase, John Shean and the deceased, Patrick McAllister—eleven gouls in ail; they sailed up the river as faras Riverdale, and there they Inid alongside a dock for some time, imtif six o’clock in the evening or half-past, waiting for the tide to turn; they then cast off, and, although they had their sails set, drifted down, as there was no wind, until they came opposite the Elysian Fields, Hobo anchor, as the wind was quite gone away; at o'clock in the evening they weighed anchot started up the river; they first made a tack on th board side towards New York, and then made another tack some time after on the port side towards the Ni Jersey shore; the tide was what is called & young flood; the wind was very slight and blowing from the northeast; while they were on this second tack witness saw the steamer James W. Baldwin coming towards them down the river; when he first saw her she might have been between a quarter of a mile and a haifa mile off; heard her paddies dis- tinctly; saw that they could not get out of the way, as there was so little wind, so he ‘‘called the boys up;’” nearly all of them being below asleep, and hailed the steamer; the steamer struck the Lady Kierner imme- diately afterwards, and some of the chaps on board dived over the side, and others grappled the steamer's bows and climbed on to her deck. The steamer struck the yacht right abeam, between the shrouds on the starboard side; witness had charge of the acht atthe time, and was stecring her; there were four men looking out forwards; some of the men in the ‘water hailed tho steamer to lower a boat and save them, and the reply they got was that there was ‘no boat aboard” the steamer; it was a rainy morning, but not eo dark that you could not see about pretty ciearly—you could see one hundred or one thousand feet off; ‘ihe yacht carried a light, it was a white iight, the usual lantern, at her bowsprit; Joe VicGrath, bis brother, had put out this light, and he could swear it was lighted at the time of the disaster; he recognized the dead body by its clothing; it was that of Patrick McAlbsier, whom be knew very well, There was also an engineer's certificate in the pocket of which would aiso prove his identity; there were no other vessels near at the time of the occurren iday pened; just about two o'clock. Hugh M —Is brother of last wituess; lives at first street and Ninth avenue; was on jerner at the time of the collision; the yacht went up as far as Riverdale, and left there late to sium ‘voce they wegied secoer ee ae pas when anchor (off \ysian and was awakened by his brother shouting down the hatchway, “Tura out, every one of you—the steamboat does not mind us, and is bearing right down on un;"’ he jumped up and went on deck, when he saw the Baldwin about a quarter of a milo off; ‘witness ran up into the starboard sbrouds, nearly to the masthead, and got all hands to hail the steamer all ‘together; they ited several times quite loudly, but those on'board the steamer did not take any notice, and ‘she still bore down on them, when ehe was quice near, witness seeing that a overboard, an bruising hie arms and back; he saw the fireroom clare on board the Baldwin and four men standing ju the bows; he hailed for a boat and for a rope and after some time he was pulled on board by oue of the passen- gers; his brother was sailing the yacht at the time of the occurrence, and must Lave stuck to the helm, other. wise she would have come up to the wind, which sho did not do; witness tied on the lantern to the jib stay, and can swear it was lighted ail the Ume up to ¢ aster; McAllister was on board the yactit when strack, and Lis particular duty waa to mind ¢! recognized hrs body at once by the clothing. ‘Washi ry :—Lives at corner of Eleventh d street; after they bad weighed anchor off the Elysian Fields the greater part of the fel- lows were below; nove were drank, as they my oe! il day, and had bad nen ix hours; Charles McGrath, Welaon himself were on deck. (Ibis witness then repeated nearly verbatim the same evidence as the two former wii- nesses.) Those on the yacht did not change their course at all after seeing the sieamer; she was too near, and there way too little wind; McGrath, the captain, appear. ed a8 COO! as possible; immediately the steamer struck ibem he weut forward and climbed ap her bows, and ne afterwards assisted to pock ap the enrvivers; they er. tainly had # boat on board the #teamer, for be had been picked up by it. George Chase, who looked very i!i and seemed euler ing from rheumatic fever, deposed that ed 0 he did not know much about boat she After re- oe the testimony of the brothers rath, witness further said:—Four men climbed aboard the steamer at first when she struck; he (witness) was in the water when John McGrath cailed to him to jump and catch hold of a which he did, xnd was pulled up on board the Baldwin; heard McGrath say to the men on the steamer, ‘For Ged's sake lower boat!’ some one then answered they had none; aud McGrath continued, “Anything will do in an emergency ; & leaky boat at all events will do to save the pvor chaps;’’ if the boat had been lowered at first, as was afterwards done, all would have been saved; ali were ly sober, and the bow light was burning on the lady Kerner from eight o'clock in the evening up to the time of the occurrence. Jobn Shehan—Laves at corner of Fifty-seventh street and Eleventh avenue; knew the deceased welt; had been his roommate for some and they were old Witness, who wil Senos) ried out to them to his_ testimony, c He was in the water and “throw him a rope for God's sake,” bat it was a long time before any aitempt was made to save him, and be herd finally drawn on board the steamer nearly ex- jausted, This being the evidence on the part of the frends of the deceased McAllister, the Coroner then proceeded 10 bear the witnesses on the o:her side. William Mozier, living at the corner of Forty-fourth street and Ninth avenue, on being sworn, affirmed that be ‘was the pilot of the steamer James W. Baldwin, had been @ steamboat pilot for more than twenty years; was on board the Baldwin ov the night of the morning of the 27th of Jul Yast; was comr the river an sawn a it two o'clock ta the morning stand- ing towards the steamer, on the west shore; (bis sloop was N. EB, was near the centre of the river and the wind and or sloop heading —apwarda— that is, in ‘an easterly direction ; for the New J After @ they went about a dark and ving accident, ‘were spared to help wooden boat was lowered as q: nearly were picked up; o © there 18 some jor yacbia and smaf boat, o carry two fights, green one, to show the tack 1! being no light aboard the yacu See eee and after pull so witnogp went astern and assisted to lower the boat, jackson, B. the engineer of the vessel war’ callod. ut hes been seloup..oh She. time of “ working ‘engines ; py ay afr "halo by. thea ae “in the water; we —_ room, Leead sistant told bi that engines had been am ad ne made a turn 4f at the time of the saw the men who were in boat ; could not swear they were drunk, bat very queerly for sober men; perhaps excitement was the rea~ stays and had to come round again. George Cramer, a passenger on board the James W. Baldwin at the Timevof the accident, said that he livec hands g the inquiry was adjourned until to. Coroner Wildey adjourned the until Mow day, the 12th instant, at eleven o'clock in the morain ., THE DEVELIN HOMICIDE. Verdict of the Coroner’s Jury—Death the K sult of Lockjaw. ‘The inquest on the body of Patrick Develin, who + said to have died from injuries inflicted by a club in! hands of one Michael Kiernan, who keeps a liquor si in Eleventh avenue, was proceeded with yesterday m: ing at Bellevue Hospital, before Coroner Wildey. Benjamin D, Gans, on being sworn, deposed that keeps a drug store at 443 Tenth avenue; the deve: came into his premises on the night of the oecurre. + and had two stitches put in a severe cut he bad on }: forehead; he did not tell who had struck him, nor.!: he bad come by the blows. D. McLean Forman, M, D., House Surgeon at Belle: Hospital, on being sworn, deposed that Patrick Deve was admitted to Bellevue Hospital on the 2otbJu 1867; be was suffering from tetanus resulting from, ¢«. wounds which he had received about a week previous his nl sad fees im consequence the dece» oNsacnes De iia, on bal sworn, said—Deceased in... eard of bis doing, injured * nephew, and the first 1 tore, wi. told me he had clubbed deceased, and that he “ t to Ki on Tuesday woek; I then wen! Bare thse he had not civen bim more;” after that I saw the ¢ - ceased, and he ayers as well as.ever he looked, «0. the eighth day after he was injured he was seized with lockjaw and ate af to this fan ses where, I r- stand, he «died at haif-past six op 7 Kipyentt’s m Patrick Donohue, residing at No, 457 Ei avenue, on being sworn, deposed—I bave been acquainted with both Kiernan and deceased; caw the former just a fort- night ago up to last evening, at about six o'clock; 1 went into Kiernan’s store, and there I saw the deceased, Peter Kiernan, Thomas Lawler and twe or three others > Develin asked all present to drink; the accveed was steering bar; he gave all of them their drinks, when the deceased started to go oat, and said, “Mark that down to me,” the Kiernan, too often on deceased, thereupon replied, “You've Tan that game me, and if you do It again 1 will put you out;”” then turned race and, pki: | oth bar — his clasped fist, said, “You are me out;” a few more rita te betwoen them, and then the ac- cused came out of the bar and took hold of Develin’s shoulder, pulling him to make him go owt; the deceased: said he would not go, and then he (risneen) eaw. Kier- nen strike Lim twice with what looked to be a ciub, on the back part of the head; he stood right beside the parties, and could see all that 5 th very heavy ones; the di the store, and went up the steps; witness does not think he was actually had a little drink on board; the deceased tripped ag be went up the steps, and staggered acroes the nally falling heavily across the railroad track ; Dovine—Resides at the corner of Thir Street and Eleventh avenue; was standing, on the of this occurrence, right opposite Kiernaa’s store; sat the deceased come and the street an theo fall heavily in mi of the road; he hi known for fourteen years and more; ‘after be feledeceased sat up and spoke to two women who were fen On the pavement, and then walked on up the James Wilson, who did not take affirmation, a3 ne did not believe in the Bible, or Cad to be out in the fore- head; called out to him to look after himself, bat he took no notice of him. Michael Meehan, Iving at a house situated between Thirty-sixth and Thirty-seventh str on Eleventh avenue—Saw deceased come up out of Kiernan’s cellar and fail in the street, after attempting to cross over to the other side; he did notseem drunk, but witness could not exactiy swear to the fact, James Te deposed—Resides at 662 Eighth roan’ just two weeks ago yesterday; tame exactly, but it must have been after seven o'clock : did not kuow deceased; saw his face as he came out o} @ store, and there was no blood on it; the deceased came out quite lively, walked up the two steps, tripped. ~ the curbstone, and Staggering to about the thiddie of that he fell on his face; he heard the sound of biows before deceased came out of Kiernan’s store; and aiso saw the accused push him @nd beat him on the back of the head. Brann sete mpg ‘212 West Twenty-seventh ; corroborated the former as to th ceased inl.ng in the street serosa the treet, * all enanan’s aod John Williams’ evidence, be- ing taken, threw no further — ‘on the Wooster Beach, M. D., of Hoagie), deposed post mination of the ceased, Patrick Develin; there was @ deep incised ‘on the forehead, and at the bottom of this cut cause, ‘The jary having retired, afver a few minutes’ deiibera- hon brought tam verdict “that deceased, Patrick Deve- } Jin, came to bie death by tetanus, the result of a wound from an accidental fall in Eleventh avenue, near Thirty- sevento street, en the 28d day of July, 1867." THE BOARD OF EXCISE. The Board of Excise held a special meeting yesterday afternoon, President Schultz in the ebair, The Treasurer, Commissioner Manierre, read the communication which bad been sent to him by the Commissioners of the Sinking Fi Tequesting bim to Produce @ detailed statement of the expenses of the Board, and bis reply thereto, For the information of the Board the the following Treasurer read staiement of ‘he expenses of the Board:— ‘To tire Comnissioxers or Tax BOARD OF ioe GextiemeN—I herewith subinit for your Hon the following detailed statement of the expenses aud salaries of the Board of Excise for the year 1867;— ie tcommissioners at each (sce ‘pier 966, sect ceases cee $12,000 ¢ Iuspector (seo Laws of '66, chapter B78, sec 2,000 08 2)... gs Salary of ‘Trelisiirer (see Laws’ of 7, ection 6) Serer GENERAL AND INCIDENTAL for salaries.. Total reservation, ed Sta and Office ful ure. Ineidental ex Towne of Kings and grencivemtiaredt | ae . Tes ci en ca, Seater fy. tune fot daly, 1 te ee THE PLAY OF CASTE. TO THE RDITOR oF THB HARALD. , Broapway Twmaraa, August 6, 1867, r I notice that in your very kind of the come- dy of “Caste’’ you say “the at the Broad. way last night was in defiance of.aa bjenetion.” Thie TOR WE 6 Se naan aoe A tago- with tn dbo same issue, I simp! yours, respectfully,