The New York Herald Newspaper, April 21, 1871, Page 5

a THE COURTS. Decision in the Hogan Will Case—Divorcs Suits— Action Against a Life Insurance Com- pany—Decisions—Business in the Court of General Sessions. SUPREME COURT—GENERAL TERM. The Old Matter of the Church Street Exten- alo be Before Judges Ingraham, Barnard and Cardozo. Oatharine A, Schuchardt et at. vs, The Mayor , e., af the City of New York.—These are several Bults brought jointly by owners of property taken for the Charch street extension to recover from the city the value of the materials of which the build: ings were composed. ‘The cases have been frequently | reported in the lower courts, and it is unnecessary to go over the various Lhe! it of their progress. The piatauins appealed from the demurrer of the defend- ants, said qdmurrer getting forth that the report or the commissioners was final as to the fee and the butld- ing matenals, and an argument was ineard on this appeal. It wasinsisted on behali of the plaintifts that in the report of the coramissioners it was stated that the Inud would be required for the extension and certain amounts awarded therefor, but that by the terms of the report the materials of the build- ings were not included; that this waa understood and argued between the commission and the pro- | ity Owners; that also, by the terms of the report, | he property owners were required to remove the materials, ana if so, it was manifestly for their own | benefit; that it has always been the custom in New York, except in cases of special legislation, to leave the materials to the property owners; that othe wise the city takes property not only without paying at compensation, a8 required by the constitution the State of New York, but without It was also shown that o compensation whatever. by ine statute of April #, 1813, under which the city claims the land, the title is only transferred ‘in trust,’ and argued that, therefore, the city could take no more tian was required for the trust, It was claimed on the part of the city that the decision of the court below should be sustained ; that it was there held that the confirmation by the | Supreme Court was final aod conclusive; aud that the plaintitfs should have onjected at that time, and that by omitting so to do they lost all power to object now. Tho answer to this was that at the time the report was presented for confirmation there was No cause to object, because the materials for which this suit 18 brought were given to the property * owners by the report itself, and that it would be great injustice to deprive the plaintiffs of rights ‘wnich did not exist at the time of confirmation, and a not azine unk ve novel construction had en put upon the re) Decision was reserved. SUPREME CQUAT—SPECIAL TEAM. Devision in the Hogan Will Case. Before Judge Sutherland, Sarah 0. Hatch vs. Clara M. Peugent.—-A decision im this case, popularly known as the “Hogan will case,” was rendered yesterday. The opinion, char- acteristic of those given ny this Judge, 1s quite brief, | Dut explicit and to the point, It 1s unnecessary. to give a recapitulation of the facts in the case, they having been fully publishea in connection with the late trial. ‘The following is THE OPINION: In view of certain recent cases in the Court of Appeals, referred to in the trial of the issues in th case, 1 do not think I would be justified, in vies ing the verdict, so palpably against the weigit of the evidence, as to grant the motion for a new trial on ‘the minates of the Court, The motion 1s therefore denied, but without costs, In making this decision assume that, of course, the defendants, E) and Clara M. ‘Peugnet, have aright to mo new trial on a case or case and bill of except ns, to be made and settled according to the rules and Practice of this Court. i ' | | SUPREME COURT—CHAMBERS. Theatrical Entertainments and the License Fees. Before Juage Brady. In re Soctety for the Reformation of Juceniie De- Unquents vs. Albert Diers—An application was | made to punish the defendant for keeping, as | alleged, a place where theatrical entertainments are — without having obtained the proper license. ‘ne application was made, of course, ou the part of the Society for the Reformauon of Juveniie Deitn- quents, to whom such licenses go, It was granted by defauit, SUPERIOR COURT—3PECIAL TERM. The Troables and Tribulations of the Diverce Business. Before Judge Monell. Ford vs, Ford.—The piainui, it will be remem- bered, was placed under arrest for contempt of court in not paying alimony to his wite. ‘The ali- mony ordered was ten dollars a week, and the pay- ment was neglected till $260 were due. The case came up on @ writ of habeas corpus to discharge him trom arrest. The opposing lawyers—A. Reavey for the petitioner and H. ©. Demison for the relatrix—taiked at great length on the sabject, ana submitted counter ailidavits; but neither the talks Ber ailidavits revealed any facts of interest addi onal to those heretofore published. The Court re- werved its decision. Mere of the Same Sort. Before Judge Spencer. Schmidt vs. Schmidt.—This ts a case somewhat similar to the above, and the facts have already heen given inthe HERALD. The plaintiff has failed to pay alimony, as directed, and a motion was made for his arrest for contempt. The Judge listened patiently to the opposing counsel, and then ordered @ reference to ascertain the facts. SUPERIOR COURT—TRIAL TERM—PART I. The Chilean Gov ent Vessel Seizure and Dismissal of Complniat. Before Judge Freedman. Varsault vs. Murphy.—In this case, in which the assignee of Garrett W. Dyckman, formerly United States Vice Consul to Valparaiso, sued to recover for services official and unofficial rendered in re- gard to the seizure of the vessel Townsend Joves by the Chilean government on account of her bringing into port a cargo of arms and munitions of war, the complaint was dismissed. The ground of the dis- Missal was that the surrender of the vessei, though under protest, to the Chilean authorities was a vir wal abandonment of ber, and that the coutract for ‘the services rendered by the assignor being made subsequent to such surrender, was not binding on the owner of the vessel. Suit Against a Life Insurance Company. Before Judge Freedman. Catharine Keveney vs, Excelsior Insurance Coin- pany.—A brother of the plaintiff, Thomas Keveney, im 1:69 insured his life for $2,000 in the defendants’ bmn ge giving for the premium his note. At his death this premium note was unpaid. A soit was brought to recover on the policy. It was shown that the policy contained a clause thatif a premium note remained unpaid after maturity, and that after iy had matured and the premium remained wnpaid the insure died the policy was vitiated. Upon tis the Judge ordered a dismissal of the complamt, Another Suit by the Same Party. Catharine Keveney vs. Phe Globe Mutual Life Insurancé Company.—The same brother of the plaintiff took out @ life policy for $2,009 m the com- pany of the defendants," The defence is that the note given for the premium was never paid, and, further, that misrepresentations were mace by the insured m his application, in that he represented himself as ainan of temperate habits, whereas, as alicged, he had delirium tremens about 2 year be- fore his death, and his death was hastened by bis outimued intemperance, = The case Is still on, COURT OF GENERAL SESSII 43, Before Recorder Hackett. AN ERRONEOUS VERDICZ—A RFSPECTAPLE GRAVER CONVICTED OF A DANGREOUS ASSAL GRANTED A NEW TRIAL. Shortly after the opening of the conrt yesterday a motion was made to grant @ new trial to (hares Archibald, who was convicted a few days since of an assault with intent to do bodily harm to Willlam Sheehan, on the ground of newly discovered evi- dence, An amMdavit of a party was read which set forth the fact that he was the man who fired a Pistol, the bail of which catered Shechan’s hand. ‘The accused, Archibald, who was an engraver for Harper Brothers, proved on the trial’by several wit- nesses that he was Inside the Baloon at the time of the shooting, and he established an excellent characier, but =the jury founa him guilty. Arter the rendition of the verdict some of the jurors expressed thelr doubts as to the correctness of their decison, ant the Recorder was so well satisied that a mistake had been made that he remansled Archibald to Tully te Yestigate the matter. Hts Honor granted the motor for a new trial, and directed the accused (6 be din~ charged upon his own recognizance. AN ALLEGED BIGAMIST AT THE BAR, Phillip Kern, who was charged with biganiy, was Placed at the bar. 1t was stated that the prisouer married @ young woman when imitoxicated, but nad committed no further improper act until the femaic discovered that he had a wile living. She left te State, stating that she would not prosecute him. The Recorder, in discharging Kern, advised him to join @ temperance society. AN ALLEGED WIVK MURDERER CONVICYRD OF LAR ir ORNY. James Woods was convicted of stealing a bale of cotton yarn on the dist of March, worth forty dollars, the property of John Dawson. The case was #0 clear— ap ollicer having caught the prisopes Mi the Pireek NEW YORK HERALD, FRIDAY, APRIL 21, 1871.—TRIPLE SHEET. taking the hale in a wheelbarrow—tat the jury rendered a verdict of guilty without leaving ineke seats. Assistant District Attorney Sullivan made the im- statement that Woods was confined im tne bs Ver a year upon the charge of murdering his wife; but owing to the fact that the witncases against ‘Wooas were occupants of shanties, built on the rocks up town, and.they had moved away, ren- dering it impossible to find them, six weeks since the District Attorney consented to let Woods go, The Recorder observed that it sometimes happened in this world that criminals like Woods did not escape punishment. It was an extraordi! cir | cumetance that eighteen months ago the prisover was charged with the murder of his wife, and that m consequence of the prosecu'in; being able to get witnesses he (the Recorder) was compelled to discharge him, For the serious offence of which Woods was now convicted he would send him to the State Prison tor five years. A FEMALE FIGHT, With stabbing Josephine Wilson in the left breast , With a sinall knile, on the 26th of March, ‘The testt- { mony developed the fact that the girl Wilson was | fignting in James street with another girl, when the | accused stepped in between them to separate them, ‘The complaimant alleged that the prisoner stabbed her. A girl who was looking on testified that the accused did not stab her, ‘the preponderance of the testimony being in favor of the girl Shackleton the jury rendered a verdict of not guilty. A “OOOL” FORGER SENT TO SING BING. John Stepbins pleaded guilty to forgery in the third degree, the complaint being that on the 21st of | November he callee at the place of business of Adam Young and purchased a pair of boots for | thirty dollars, for which he tendered in payment a check on the Park National Bank for $103 and | signed H.-G. Stebbins & Son. When the check was presented ot the hank it was found to be worthless. The prisoner was an exccadin ans intelligent, elderiy man, and promptiy informed his Honor, in auswer to an inquiry, that he served a term ina Rhoge Island prison. In consideration of Stebbins saving the court the trouble of a trial three months were deducted from the punishment, which was four years and nine months’ imprisonment in the | State Prison. ' He also said that he had commitied a { good many crimes in his lifetime, but not forgery. ANOTHER FORGER PLEADS GUILTY. Frank L. Myles, against whom were three com- plaints, pleaded guilty to forgery in the third degree upon an indictment charging him with forging & check upon the Marlae National Bank on the Lith of Maren for $100, with intent to defraud Nelson H. Leadbeater, by forging the endorsement of E. K. Willard. He was remanded for sentence. A NEW DODGE—WARNING TO RAILROAD PASSENGERS cS ABOUT BAGGAGE CHES. Wiltiam Smith pleaced guilty to grand larceny. | It seems that Mrs. Maria Fisk, of Germantown, Pa., | had a tronk containing female apparel and jewelry | Worth $800, which was delivered on the Lith inst, by Dodd’s Express at the New Haven depot, to be delivered to the owner there, and that an unknown hackman produced @ card check, which was dis- covered to be a forgery, and upon the preseutauion of which he procured the trunk, A police officer traced the trunk to Page's sfote], where Smith had engaged @ rooin, at which time he handed a check to the clerk directing it to be sent to lis room when Ab ATTIVEd, § mo ejabyses te The prisoner was remanded for sentence. AN ASSAULT UPON A ROUNDSMAN BY OFFICER MA Joseph Mathias, an offices the Fourth precinct, | Was tried and convicted of assault and batte Peter Melley, @ rounasman of that precinct, who, it seemed, had made iwo complaints against Mathias for breach of police regulations, and on the afternoon of the 24th of February they conversed ; together on the corner of Oliver and Elizabeth | Streets, and Mathias‘struck him three or four times | with his club. Captains of two precincts and others were sworn after the rendition of the verdict, ail of | Whom gave Mathias (who had been a member of the force for seven years previous to his dismissal) an excellent character. Recorder Hackett, in dispos- ing of the matter, said that he had at first invended to punish the defendant as severely as the law allowed; but after hearing the statements of the captains he would suspend judgment, His Honor stated, however, that the next policeman convicted of assaulting a brother oficer would be severely dealt with by the Court. AN ESCAPED CONVICT ACQUITTED OF LARCENY AND TAKEN BACK TO SING SING. John Sheridan was tried upon a charge of grand larceny. Charlea Uppermann, the keeper of a lodg- lng house at 435 Ninth avenue, testifying that on tie , 17th of Mareb he lost a gold watch and chain and authorities not | Matilda Shackleton was placed on trial charged | | Judge Curtis.—Nos. 6833, 5336, 5365, 5512, usual” en Sunday, and thatin the evening, after they were drunk with the liqnor sold them, one of the party came bebina the counter and wanted to BHQOT TIS LITTLR DOG SCHNEIDER, because tie had growled at them once or twice durin g the evening. He declared he would ‘ave the dog,” and & general mélée occurred, The “gen- tlemen of color upset the soit soap and broke severat signs, and so destroyed the equanimity of the saloon keeper that he drew a revolver and fired it into the air in order to attract the attention of the police. A mob gathered around and hooting and stone throwing commenced, resulting in breaking the jaw of poor Henken, spoiling the looks of his face and forever Gamaging his speech. The poor old man presented a sad appearance, and seemed Greatly affected at bis misfortune, as he was merely @ bystander, like a hundred others. Tie mother of one of the prisoner: colored woman, wearing & coal-scuttle bonnet and green spectacies, raid she Was disgusted with her son for desecracing the Sab- bath day in such a way, insisted it was a case of punishment, and hoped it would ‘smash up the beastly German who wok al) the poor men’s wages on @ Sunday.’ Judge, to keeper of beer saloon—I wish the stone had hit you instead of the poor old man. If J had a Sompplains here against you | should not hesitate to send you to tne Penitentiary for six months. You open your store on Sanday morning and sell liquors against the laws of the State, and collect a crowd of roughs in your place. I shall speak to the Superin- tendent of Police about you and ask htm to place a min to watch your premises. I warn you to beware. You encourage rowdies in your piace ,and disturb ' quiet, orderly people wno are engaged in divine wor- ship. Iwill not forget you, Kacn of the prisoners will go to the Penitentiary fortwo months, and when they return T hope they will abstain from assisting German liquor dealers in breaking the law. THE FIRST NINE MONTHS, Mary A. Henry charged Edward Baker with kick- ing her in @ most brutal manner about the body and m the eye. ‘The defendant certainiy had not the ap- pearance of an ordinarily givilized being, and he was treated to nine imotitis in the Penitentiary. P AN AFFECTING SCENE. One of the most touching and romantic scenes ever witnessed in @ court of law was enacted in this court yesterday. It was a case of real affection, a scarce acquisition, Johu Hyde, a Jad of about eleven: years of age, had been put under bail to answer for some triding offence. The complamant did not appear, bat ne sooner did the lad appear behind the bar than his sister, a little light-naired girl, rose in + her seat and began weeping bitterly, sobbing out her brother’s Christian name in the most piteous ner, The lad began to ery also. Jome forward, little girl,”’ said the Judge. She came out, and, grasping her brother around the neck, she drew him towards her and sobved loudly. “Oh, Johnny, Johnny, my poor mother! what will she say? What has brought you here? 80 atfec- tionate and real was the scene that a dozen pocket- handkercmefs were in immediate requisition. All the females 1a court were in tears, and nota lew men began to vlubber. Ke your brother away,” sald his Honor, me along, Johnny. There, there,” satd the two leaving the court soboing unul their crying: died away in the distance, "COURT CALENDARS—TWUS DAY. SurneMe CourtT—Part 1--Held by. Judge Van Brunt.—Nos. 815, 1073, 3111, 1199, 1339, 1341, 1909, 1461, 2463, 1465, 1478, 1499, 14%5, 1497, 1605, 1519, i 1571, 1579, 1683, 1671, 1757, 1832, 1883, 1834, OTL, SUPREME COURT—GENERAL TERM—Held by Judges Ingraham, Barnard and Cardyzo. 252, 204, 259, 200, 201, 263, 205, 2 268, 269, , 273, 276, 277, 278,. 279, +80, 281, 282, 2. Part 2—Held by Judge Sutherland.—Nos. 762, #04, 109632, 1100, 1342, 7434, 1496, 154644, 1564, 1596, 1606, 1670, 1748, 1773, 1856, 1688, 1894, 191834, 1082, 20223, 2028, 2066, 2067, 206244. SUPREME CovRT—OnHAMBERS—Held by Judge Brady.—Nos. 55, 61, 94, 95, 118, 120, 136, 142, 152, 47, 48, 69, 63, 87, 128, 138, 143, 146, 149, 160, Superior Court—TriaL TERM—Part 1—Held by Judge Freedman.—Nos. 673, 507, 353, © 512, A, 659, 639, 641, 643, 645, 647, 649. P by Judge McCunn.. 8. 634, 163, 208, 382, 356, 378, 302, 448, 608, 610, 656, 658, 660, 662, 664, Court OF COMMON PLEAS—TRIAL TERM—Part 2-— Held by Judge Joseph F. Daly.—Nos, 374, 967, 1203, 1254, 1272, 1262, 1275, 1305, 1161, 1296, 1258. MARINE CourtT—TniaL TERM—Part 1—Held by 27, 4363, 5493, 6607, 5521, 5635, 6 682, 530, 5038, 6538, 5540. kt by Judge Shea.—Nos. 5,900, 6144, 6213, $100 in money. The testimony against the prisoner was so slight that the prosecuting officer abandonéd the case, and the jury acquitted him. Just before leaving the bar the Recorder asked Sheridan how many times he had been in the State Prison, to which he promptly replied, “Three ttmes.’? A police officer in attendance, knowing that Sheri- dan was an escaped convict, arrested him on the spot, and took him back to Sing Sing. AN ALLEGED FALSE PRETENCE MAN ON TRIAL. Patrick W. Smith, against whom were several complamts for defrauding citizens, was put on trial, charged with procuring $140 worth of cigara from Emile Stork, 250 Eignth avenue, on the 2ist of March, for which he gave im payment a worthless | chi upow the Ocean Natioual Bank. The case wil ; be finshed this morning. COURT OF SPECIAL SESSIONS. Commencement of a New Era in the History oj the Court—An Alleged London Pickpocket in a Fix—An Electric Witness—An African Molee in Laurens Street Lust Suaday—A ase for the Saperintendent of Police—The Exercise of the Increased Power Com- menced—An Affecting Scene. F Before Judge Dowling. The Court of Spectal Sessions entered upon a new phase of existence yesterday. After the court had been formaily opened the clerk was instructed to make the following announcement:— plation to the punishment of offenders tried ‘ourt Of Special Sessions of the peace in and and county of New York, passed April 5, 7i—three-tiftns being present—the people of the yand county of New York, represented in the enate and Assembly, do enact as follows:— Secriox 1. In all convicuions for misdemeanors tried in the Court of Special Sessions of the peace in and for the city una county of New York the satd | Court shall have power to impose the same punish- ment as is anthorized by law to be inilicted in like { causes tried 1D the Court of Generai Sessions in said | city and county, Sac. 2. Hereatter, tf either of the justices now designated by law to hold the Court of Special Ses- sions shall be unable to act by reason of sickness or er disability, or shall be absent from tne city, It ibe the duty of the Mayor of the city of New York to designate either the Recorder or City Judge of said city and county to actin the place of sald justice during the contunuance of such disability. ‘The principal feature in the new law, and that which ts considered inost { mpo~tant, is the permis- sion to IMPOSE A PENALTY OF $250 im aggravated cases; for in many oases It will insure lengthy and severe punishment, as the defendant can be held in prison, if the Court so decrees, untt! the fine is paid. The other point is the extension of punishment from six to twelve months for brutal assaults aud the worst cases of larceny. Judge Dowling soon found an occasion for exercising the iucreased power placed in his hands, as shown in the following report. The seal of record has been supplied by the Secretary of State. A BULL(Y) WITNESS, ‘The first cage called was that of The People vs. Thomas J. Williams. Thomas had the misfortune the other day to be out walking, when he heard a woulan say she had been robbed; that her pocket- book had been stolen and acertain woman in front of her nad stolen 1% He under.ook to consult the oMcer whdm the womaa had called and suggested an attempt to obtain possesston of the pocketbook again. He walked up to her and put his hand under her shaw! and tried to get away from her what he saia he considered as the property of the other woman. He didn't succeed in recovering the pocketbook, and the woman on whom he made the attempt de- nied all.knowledge of the affair and gave him into custody on a charge of attempting to pick her pocket. He was to be detained as a witness inthe Hirst case, but wished to decline the honor as he didn’t wish to be seen im the company of a poiive: man, and hence become notorious. The second Woman, however, Was 80 positive that he tried vo steal her money that he was put under bail to answer. Tn the court | penne the question of the miss- ing pocketbook was lost in this peculiar individual, spoke as though he was actuated by telegraph, pid was his flow CR in He began by dis- ning any knowled of either of the parties, the accusation that he was A LONDON PICKPOCKET he treated as being too absurd to entertain for an Instant. ‘Where were you born?’ asked the Judge. “dn North Carolina; but l was taken away to Eng- land when 1 was very young. It is sixteen years since J leit this country, but, oh of course J am not acirizen, 1 have been a currier in London, where T have resided tor years in ‘the leather district,’ and have only returned here a few months ago, I live ab 57 Vesey street”? Fle assured the Judge he knew him when he was nt Of police, but that appeared too thin, tor r said he had not an oflice at that time, you uot try tg steal this lady's pocketbook?” asked the Court. “Al, well, really that’s too bad; this ‘ere woman Wos a long way ahead of me, and [rons after her and tried to bring the money back. By Jove, what au | taken for” ‘ou seem to tell a straight story, but if you are brougiit here again your rapid speech ‘will not You can go,” said his Honor, AVRICANS ON A SUNDAY SPRER. Henry voncs, Juhn Brown and Andrew Dot three ‘“Gemmen from Africa,” were charged’ by Louw Heuken with brea Jaw bone, on San- day evening last. The three defendants have been sunday morning habdttués of @ beer saloon, No. 22 Laurens street, for many months past. Last Sun- day they con ited there and drank liquor until six eve save you. twelve o'clock im the morning, ana at o'clock th the baba After they had taken in “full cargoes’? they me @ little troublesome, and, th appears, Wanted to fight, eeper of th saloon, Who looked as though he nad oy pickled in } layer, testified that they came to plage “ag Part 8—Hel 6052. BROOKLYN COURTS. UNITED STATES DISTRICT COURT. Action to Condemn Property Seized. Before Judge Benedict. Assistant District Attorney Allen yesterday insti- tuted proceedings in the Distriet Court for the for- feiture of the rectifying establishment of H. Reiners, on Stage strect, E.D., which was seized by the revenue oficers for aileged violation of the revenue laws. ‘The property seized is valued at about $15,000, UNITED STATES COMMISSIONERS’ COURT. Seizure of a Reetifying Establishmeut—The Revenue Officers Resisted. Before Commissioner Jones. Hugh Brady and John Lowery were arrested by Apsistant Assessor at Large frederick Cocheu, who found them engaged in putting illicit spirits into H. Reluers’ rectifying establishment, on Stagg street, Eastern District, OMecer Cocheu made an examina- tion of the premises, and found, as ne reports, that large quantities of ilileit spirits had been received there, and that the law bad been vielated to @ great extent. He procured the seizure of the establishment and contents, inciuding about 10,000 gallons of spirits, by Deputy Collector Patterson, and the Marshal took Possession. The officers met with considerable re- sistance, and during @ row which occurred oficer Cocheu and several others were injured, though not severely. Cocheu discharged his pistol at one of the assailants and then broke it on the fellow’s head. All the books and papers of the place were stolen, Brady and Lowery were taken before Commis- stoner Jones, when they waived an examination and were held o bail in $2,500 each to await the action of the Grand Jury, Mr. Reiners, the owner of the establishment, was not found, No other arrests were made. The parties who resisted the oMcers succeeded in making their escape. SUPREME COURT—ciRCIT. Suit Agninst an Insurance Company. Before Judge Gilbert. waliam D. Murphy vs. The Impertal Pire lasur- ance Compony.—Plainuif! brought suit to recover $2,500, the amount ofa policy upon his house, which was destroyed by fire on the 28th of December, 1869. The company refused to pay on the ground that the property bad peen transferred by plamtiil to his brotner-n-law, one Riley, three weeks prior to the fire. On the part of the plaintiff it was shown that Murphy himself took the deed to the Registers oifice and recorded it in Riley’s name. Riley was not a party to the transaction, and the deed was not delivered to him until after the fire, and then Mur- phy only gave it to him to take over to the manrance coinpany When he went to inguire why the pottcy wos not paid. ‘The jury rendered a ver for $2,728, Incinding inter The Contested Will Case. Frederick Baker, appellant, vs, Amétia Dederky, Respondent.—The plainti in this case, which was reported in the HERALD of yesterday, broaght this action to test the validity of the will of Cathanne Ahren’s, Amelia’s mother, who died in January, 1870. Mrs. Ahren bequeathed only $100 to defend- ant, $500 each to two nieces and the balance of the property to Baker, her nephew, The ate de- clared the will null and votd, but the General Term of the Supreme Court airecied that issue pe framed Jor trial by jury. ‘The trial of the case was concluded yesterday, and resulted m @ verdict in favor of plamtif on alt the issnes, The allegation was that be had obtamed iu fayor of plainurt Mrs, Ahren’s signature to the will by fraudolent means. te Persons Who Get on the Frout Platforms of Strect Cars. Before Judge Neilson. John T. Murtagh vs, The Brooklyn and Coney Island Ratiroad Company.—On the 22d of Decem- ber last the plaintii attempted to get on the front platform of one of the company’s cars in smith street, when he was thrown to the ground and, a8 he allegea, received injuries which will disabe him for life. He, bas i fbiphe brought suit to recover damages i the sur of $10,000, Tt was claimed on the part of the defence that per- ons getting on the front platform did so at ther own risk, and that in vis case plaintit should have got on the r platform. [t was admitted that the car was not stopped, but it was also claimed that f did not signal the driver. Testimony ror matted laced to show that after the accident Murtagh got on the car and did not seem to have deen serioasiy Injured, The doctor who attended laimti swore that his injuries were slight, and that Re appeared to be under the influence of liquor, A motion for @ non-suit on the ground of contribative negligence was grauted by the Court, BROOKLYN COURT CALENDARS. y Court—CrreviT.—Nos, 52 41, 115, 123, 18 on te, 3 185, 144, 146, 147, 148,"149, 150, 151, 18 de ourne Parts 1 and 2—Jndges Neilson and Thompson.—Nos, 41, 42, 140, 132, 111, 4, 165, Part Judge Mooue.—Spoctat term, COURT OF APPEALS CALENDAR, Roel are is ‘The following Is the Court of Appeals day calend for ADT gh I6TH=—=NOM, 201. 380, 147, 2, 202, 20 206, 20% llttle creature, and she kissea him each time; the | THE ERIE WAR. THE BOCKS NOT YET PRODUCED. Jay Gould Shelters Himself Under “‘Ar- ticles of Association.” } Stock, which was delivere: ‘rhe most important proceedings In the reference before Mr. Kenneth G, White, the Master, were those which took place yesterday in regard to the 60,054 | shares of Erie stock claimed by Heath and Ruphael, ; the English enareholders, to bo their property. Mr. | Jay Gould, the president of the Erie Company, was examined at considerable length, and it wiil be seen from his testimony, fully reported below, that he declines to produce the books called for in the Mas- ter’s order, on the ground that he is not certain whether he has or has not a right to do 80 under the articles of association of the Erie Company, The | Master will immediately report to the Court the fact that Mr. Gould dechnes to produce the books, and it will then remain for the Court to say whether he shall be compelled to furnish to the Master the books called for under the order, Mr. Southmayd appeared as counsel for the English shareholders, Heath and Raphacl, and Mr, | Pierrepont and Mr. Morgan forthe Erie Railway | Company. TAY PROCEEDINGS YESTERDAY. | B, Ogden White, sworn, and examined by Mr. | Southmayd—I am Secretary of the New York Stock | Exchange. Q. That is the institution which, im common par- | lance, 1s called the Board of Brokers? A. Yes. Q. Produce the resolution of the Stock Exchanze with regard to registration of stock of the Erte Rall- way Company as kept m an office other than its | own’ A. I produce the resolution, Mr. Morgan objected to the resolution. ‘The Master allowed it to be put in. Mr. Southmayd—It is Rule 8 of the constitu. tion and bylaws of the Stock Exchange, and Is as Sollows :— The Stock Exchange will not call or deal in any active speculative stock of any company @ registry of whose stock 1 not kept in some respousibie bank, trust company or | other satisfactory agency, and which shall not give publio notice of the time of establishing such registry of the num- | ber ot shares so entrusted to be registered, and aball not give at least thirt otice, through the newspapers, und In writing to the President of the Stock Exchange of ‘any in- | tended merease of the number of sbares, either direct or | throngh the issue of conyertible bonds, and shall not at the same time give notice of the object for which such issue of stock or bonds is about to be made, Witness—I have a certified copy of this rule, which I willleave with the Master, (The Master marked the paper as av exhibit in the i.) This rale, con- tinued the witness, was adopted on the 30th of | November, 1868, to take effect on the Sist of January, 1869, Cross-examined by Mr. Plerrepont—Q. Do you know of this rue having been departed ‘from in apy | instance? A, No, sir, Ido not. Q. Do you remember the case of the Rock Istand Railroad Company? A. I remember that case; they deparied from the rule, but afterwards came in under it, Q. Was the stock of the Rock Tsiand Ratiroad sold atthe Board without velng registered? A, That L could not tell; 1 should think not, Q. Was there an increase of the registration made Without any notice being given to the Board? A. It is very difficult for me to answer that, as I was not Secretary of the Stock Exchange at the time. Q. What do you know about it, as a matter of public notertety, that it was departed from, and the registration increased without any notice being given tothe Board? <A. I could not answer that; I do not know enough abont it to answer, ; , Do you know of it in the case of the Wabash? A. Not in the case of the Wabash that I recoilect. Q. Do you Know whether, with regard to others, that was so ornot? A, Lthink not; 1 did not bear | of it to my knowledge being departed from. Amos D, Williams sworn—Examined by Mr. Soutbmayd—i am a member of the New York Stock Exchange; I am @ member of the committee of | the stock Exchange and a member of the commit- tee on additions to the stock jst; persons making applications te come before the committee in regard to stocks would come before us; any trouble occar- Ting under the third rule is referred to our comiit- ee, Q. Have you possession of the documents which were sent by the Erle Railway Company to the Stock EXchange in regard to the opening of a registration of their stock in the Farmers’ Loan aud Trust vom- pany’ <A. Yes, 1 have them here in my pos-ession. Mr. Morgan objected to anything being said about those papers until they were first produced. Witness—I have them here, in pursuance of a subpwna that was served on me. Mr. Southmayd—There are two of them from the Farmers’ Loan and Trust Company, and three from the Erie Ratlway Company. The Witness—I produce five documents which the registration was originally made. The documents from the Farmers’ Loan aud Trust Com- pany are signed by Mr. R. G. Raistos, president of that company, and those from the Erie Railway Company are signed py Jay Gould, president; one of them by Jay Gould and H. N. Ous, secretary. Mr. Southmayd would like to know if the other side called upon him to prove the signatures to these papers. upon Mr. Pierrepont said that was not necessary, as he Knew the signatures Lo those papers. Mr, Southinayd—I would like, at this stage of the case, to have it entered upon tne record for whom Mr. bierrepont appears, Mr. Morgan objects to the papers and Mr. Vierrepont does not. Mr. Morgan—I withdraw tie objection, . Pierrepont—As soon as )ou are throngh I will state all about it, how I came to be engaged in this ; Ase. Examination continned—Q. Now, Mr. Wiillama, you were about to say how many papers were sent with respect to the registration? A. Two of those bear date on the 8tti of September, and those of that | date were not considered ort p. strong to jus- | tify the Stock Exchange in putting the stock on the lists, and te enable that to be done the subsequent ones were sent down, Mr. Southmaya put the papers in read one of them, as follows: Orrick Bere RAc.nod NEW ) ORK, 5 R. G, Ravetos, Eaq., Presideut Farmers’ Loan and Trast ‘Company: DEAR Sin—The following 18 a statement of stock, debt and Jeusehold estates m answer to your inquiries of this date :— ‘The amount of convertible sock issued is $70,000,000 ; the amonnt of common acrip none. ‘The amount of preferred stock, incinding scrip, 8,508,910, The amount of mortgage devt (seven per cent) authorized anit inuued te as follows: whit mortgage, 49,000,000; extended May, 1957; due Juno, Second mortgage, $4,000,000; date of tasue, March 1, 1849 due ltt, mortgage, $86,000,000; date of fasue, Match 1, 18535 jue B Fourth mortgage, $4,441,000; date of issue, October, 1487; ne ue ‘mortgage, #926,500; date of issue, June 1, 1899; due evidence, and Company, tT, 18a, 'f Biuf Branch mortgage, $186,400; date of issue, July 1, 1861; due June, 1891. p ‘The amount of sterling bonds, £1,00,000 ($4,844,400), Sep- tember 1, 1885, due 1875. Under a statute of this State the mortgage debt is converti- ble into stock only within tea years from date of Issue. Ten ears have expired on all but the sterling loan, abd 4s that nelling at par in London there is no danger of cornering. There 19 no loca! road that can be ted into the stoc. of this company, except in complial the rules of the | Stock Exchange, by giving thirty d ee, nor wiil avy Increase be made in any form, exert in compliance with the aforesaid rale, JAY GOULD, President. ‘The witness continued to say—I am @ pipes, y wi Mains & Co., 45 Wall street; ber of the Stock Exchange since 1456, with the ex- ception of a single year; I am familar with the sys- tem, as it exists In Ulis city, with respect to tue sale and delivery of stocks and stock certificates. Q. Do you kaow what has been the practice or usage tm this city since the Institution of the Farm ers’ Loan and Trust Company with regard to the sale and detuvery of stock, and in respect to the cer- tifleates being registered in that company or not? A. To make the certificate pass current, it mast be registered; otherwise, it would not pass: that is the condiuon of things up to the present time, Q. In order to seli the stock as inarketable stock tt requires the registration of the Farmers’ Loan and ‘rust Company; A. Yes. If any one sent in to me 100 shares on certificates not registered I should not pay for them; that is the rule and custom of the Stock Exchange, Q. It is not considered a good certificate on a contract for sale unless so registered—it is uot mar. ketable for the purpose Of current sale? A. No, sir. The witness was briefly cross-examined by Mr. Pierrepont. Q. Are you aware that this rale of which you have spoken has been departed from in the Rock Island stock? A. The Chicago, Kock Island and Pacific stock; there was an tucrease of the capital stock of that company from nine millions to thirteen or fourteen millions; the stock, a8 it came in, was registered, but the reason the Rock Island was thrown out was because they did not give notice of the increase; but they afterwards tered; so far a¥ the Board was concerned that stock ‘did not pasa in the Board, nor was it sold in the market or delivered, so far as | can remember; 1 do not cali to mind any stock to which the rule ap- ples that was not registered. Task the witness to look at this certificate (one Of $100 cach, and say, supposing it wes uneauceltey of each, and say, su) was ul eu Would it be Ucliveratie Mock under the rule? A. do not think it would, because it does not appear to have the t's mark upon it; mark should be across the face of the certificate; @ good a T+ adnsetanit oa them anda good many V8 NOt Redirect—Q, If it was not one of the original cer- tificates registered in the Farmers’ Loan and Trust ee at tho time it was passed and lacked the certificate of the Farmers’ Loan and Trust Company, and therefure was not a good delivery, was there way process wat could make it a goed delivery? { Would i be deuce’ — A. It shouid have the Farmers’ Loan ane Trust Con» pany’s registration upon tt. Mr, Soutiimayd—Vor wiom does Mr, Pierrepunt appear ? Mr. Pierrepont. for the Erie Ratiway Company— ‘This was ap inquiry, he thoaght, m regard to 30,000 shares ef the stock of Heath and Raphael, On this suwject He had advised Mr, Gould to render all pos- sible assistance by the production of the books anda docaments demanied by the Court, Heath aud Raphaci were holders ot 60,000 shares of Erie stock | and seat their certificates to the oMce of the com- pany after the books were closed to be registered in the Farmers’ Loan and Trust Company. After (nis dames H. Coleman was bi recetver of this up to the company in September, 1870, This stock, he observed, had never beon taken to the Farmers’ Loan and Trust Com- pany and hed not become marketable under the ries of the Stoek board, The coal strikes last winter and orer disasters cansed the receipts of Ene to fail of hate a milion amonth. This dered It necessary to ratse money outside of the income to Work Lie road. The Executive Commit- tee, therelore, passed a resolution to sue convertl- vile bonds ‘hat would equal the 30,000 shares of stock and tee those bonds for the purpose of raising Money to meet the requiremen’s of the occasion. c | These bonds were sold for the market prices of the stock, aud the amount was used to defray the com- pany’s expenses, ‘These bonis, thus converted into stock and returned to Che company, were represented by stock, ‘The stock was sent to the Farmers’ Loan | and 'Trnst Company tor registration, in order that | this stock would be sold in the market to pay the | | hoiders of the bonds. As each parcel Was sent down directo were given to the clerk of Erie to | take cane ‘ertineares to the Farmers’ Trust ; Company to the same amount, the more readily to facuitate their purpose, and the stock was sold in the usual manier. ‘THis statement Mr, Gould would substantiate on Mr, Southmaya— stealing of our sinek. Plerrepout ye have proved a frand—the Wit has become of it? Mr. ‘8 Mr. Gould Wil state the truth upon his oath, perhaps upon his honor, as if we should be expected not to contradict, his asseruons, 1b do uot regard Mr. Gould son Who holds the re- any extraordinar: robbery; we ive the usual manne JAY GOULD ON THE STAND, id, oF Erie, Was the next witness sworn, by Mr. Soutnmayad. You are President of the Erle Railway Com- pany? A. Yes, sir. 4. Look at that summons, and say if itis a dupll- eal if the order served upon you, and whether you produce or decline 10 produce the papers which'are | there called for? A. The samimons that was served upon ine Was # blue paper; I toink tis is a& duplicate, Q Do you produce or decline to prodece the papers and books descrioed in that summons? A. 1 have made a personal examination of the books in the treasurer's and auditor's departinents, and sure is no entry containing an imventory of the stock. By the Master—That is not the question, It is edit. We have proved the | eavoring to optaim redress in 5 j finally sald—if they were in the safe it would bq done; I would obey that direction. Jay Gouid’s testimony was thea resamed:— Q. Now, Mr. Gould, wit! you give that direction ta, Mr. Hilton or do yon deeliie to produce such of tunel books as are calléd for in the order of the Maste: now in the safe t by Mr. Hilton, as transfer clerk ¢ , by the rules of the assoclationg order { will give it. Q. Do you deciine to say Whether you will ety such order or noty Wil you give thar order? A. | do not know Whether | have the rigat to give it ot. | The Master—You have not given a proper answet | to the question. Do you or do you not decline to give those directions’ A. (A long pause.) Sappose You «direct me to do an ilivgat act? © a at The Maswr—Phat is uo! the question, You hava no right to presume a of tue kind. | repeat the question—w \Lor Will not give thos direcuons A. (‘The driven into 's fhe, paused again.) efore | answer that queauon i | should prefer to know my duties precisely ia tie | preinises, Mr. Pierrepont—Then Mr. Gould declines to and | awer the question? The Master—Does he say he decline? A. 1 navd not anything further to say of that matter; if Mat fs a declension [ stand by the answer. The Master—Do you deeline’ A. 1 stand on my answer, f ‘Mr. Southmayd asked the Master to positively ind oe the witness to give directions lo bring thosq 0OKS, ‘The Master observed that he had already givert ‘him such directions, You (Mr. Southinayd) can serve an order on him again if you like. The Master then put upon the minutes an entry that he here dis rected the witness and had heretolore directed bing | by a written order served upon him to prodace tna | books calfed for m such order, or to direct tei production. Witness—Can’t yon specify the books? The Master—They are meationcd In the order. Mr. Southmayu—What do you say to that, wite ness? The Witness—I have already given an answer. Tne Master—Vhat is no answer at all, Here is person, the transier ¢lerk, having physical control of the books, and you decline to order him to bring them here, 3 The Witness -I don't propose to dispute of} your orders, or to be disconrteous, but in this mute ter 1 donot know my powers. You interrupt wg treasury department $50,000 or $60,000 every day, and [don’t want to do that auless I have the powet to do it, If such power 1s invested in me I will do itd ‘The Master—The road is entitled to some consid eration. Justice also requires consideration: but the road must give way to the interest of the latter. Mr. Southe:ayd, if you desire you can go furthey with this matier. Mr. Southmuyd—You intend to certify to the | Court that Mr, Gould statesyhe declines to produc | these books. d ‘The Master—Yes; that not only does he decline ¢ | Produce the books, but also that he will not give at | order for their production, kaa ou Will enter my explanation, will you: not whether you ) reduce or deciine to produce the books and papers called forr A. The only entry there 1@ the proceeds of the convertible boads—$650,000. Mr, Southmayd—l will ask the witness 1n detatl. Q. The tirat book catled for in this order is the stock ledger, or the ledger in use from September 4, 1470, to the present time. Is there any such book ? . Not to my knowledge. You don’t know, then, whether there Is or is not a stock ledger of the company of which you are presidenty A. [never saw it to my knowledge. Q. Do you know whether there is a stock transfer book of the Erie Railway Company which was in use in Septe 1870, and transfer books which were in use in December, 1870, and January, 1871—had your company any wansfer books in those months? A. [ presume so. 0. Where are those books now? A. I suppose they are in the office. Q. Have you ever scen them? A. Never to my | knowledge; I Know that we sent down here three or four car loads of books. Q. Who gave directions for the sending nere of those hooks? A. J grave directions. Q. What books did you give directions should be sent? A. | directed the transfer clerk te send such books as related to the transfer of those 60,000 shares of stock to Mr. Coleman, us receiver, Q. Have you ever given any directions that the transfer hooks which related to the 30,000 shares which were issued and sold upon the street in heu T don’t know; The Master—No, sir; it is no answer at all; youg counsel, even, does not clatm that i 18. Witness—It occurs to me that [ have given you @ good common sense answer. In reply to Mr. Souths mayd the witness said the executive committee of | the Erte Railway Company was composed ot Fisky Jr, William M. Tweed, F. A. Lane and himselis e of those gentlemen, to bis kuowledge, had cons trol over the books, Q. Has anybody control over the books? A, have answered that before; to answer ft mtelligenth 1 have to 100k at the articles of association am cbarter of the company. (Merriment in court.) The Master—You siated a few moments ago that you seut four loads of books from the oifice, which From where a books I directed te be produced, ‘A. Tcannot you get the authority to send them’ Say, unless It was yours. Q. Where did you find the authority to send those books nerery A. They were books of cancelled stock, i Q. Where did you get the authority? A. 1 musq have assumed it. Q. The order was complied with when you gav@ it? A. I suppose so. ‘ Q And if you took upon yourself this authority” again it would be obeyed’ A. | have never given @ thought to the subject. Mr. Southmayd intimated that he should apply ta the Court in regard to the evidence of Mr. pony and, in reply to the Master Counsel, said he hac of 30,000 0f Heath aud Raphael's stock should be senthere? A. i supposed the whele of the books would be sent. Q. Do you know anything of the register of daily balances or register of stock transfers kept in De- cember, 1870, or January, 1871¥ A. 1 don’t know of there being auy such books. c rlificate book from which were cut ssued by the company from the 28th December, 1870, to January 16, 1871, both iuclusive—are there such books? A, I suppose 80; 1 think they were ail piled on the express wagon and sent here. Mr, Soutimaya—There was nothing of the sort. ‘The two convertible bonds which were issued by the company in December, 1870, and January, 1871—one betng for two millions and the other for one million— do you know of the existence of these two bonds? A. Yes, [ know of thetr exis! Q. You say you don’t know whether your com- pany has a stock ledger? A. 1 am entirely unfa- millar with the details of the bookkeeping depart- ment. Q You don't know anything about the stock edger of your company? A. No, sir. . Who of your company does know anything aboutit? A, 1 suppose the transfer clerk, Q. If there is a stock ledger, who has the control of ity A, [don’t know. Q. If there are stock certificates and transfer books, who bas the control of them? A. The trans- fer clerk, Q. Have yon the control of any of the hooks of the company?” A. 1 control them throagh the different departnients; they are all under my control. If the company 18 oraered to produce the books in Court-—the books that are pow tn the hands of the transier clerk, locked up in his safe—who has the power to bring them down in compliance with the order of the Court or to huve them sent down? A. I cannot tell without reference to the articles of association. The Masier—Is it within your power to produce them’ A. | cannot say without reference to the ar- Ucles Of asa uon of the company. (Laughier.) Q. Do you always examine the articles of associa- ton before determining anytning? A, Yes, in any extraordinary case. q Your iranster clerk is Jonn A, Hilton, and be has testified that most of the books und papers which are called for vy this order were locked up in the sale in his room the last time he saw them, Whose direction 18 required, according to the course of business in the Ene ice, to send those books down before the Master? Can the traaster clerk do it himself? A. | answer that the officers’ powers are regulated by ce in rules of the assectation, and Ihave never examined those ruies with the view of ascertaining my powers, Q Who has the power if it is not yours or the transfer clerk’s? A. I could not tell without refer- ing to the articles of association, Q. If you were engaged ina litigation in which you wantea to have those books produced in court, do you pretend to say that you do not Know how to get them down to court’ A. Before 1 undertook that responsitlity | should e: the articles of association, ‘The Master--flas the énie Company never had a litigation in whieh it was necessary to use their papers or books A, Never; this power has never been brougit mto exerci iO take these books away migitt rnin the whole company. Q Can tell me any one who has the power if you have not? A. I can oniy tell you that by refer- ing to the charter of the assoctat ; that Is the practical way io get at it; it was never put in prac- tice betore. @. Who are the powers that do things in that par- he vice ual way except yourself? A. Mr. Fisk, Jr, president: M A. Lane and the board of direct ers, (The witn mentioned the names of the perg sous comprising the directory.) | The Master—You say you could not tell whether | you had authority to direct those books to be pre Gueed unless you looked at the articles of assocta- tion, [desire to ask you, 48 @ matier of fact, whe- ther, {f you ordered your subordinates to produce those, books, they would not be bound to produce | them here, and whether it would not procure the | proaucton of them if you, seeing fit, ordered them? A. Let me explain. The Moster-Answer directly, one way or the other. A. Ldon’t know; there are three sets of | books —the books of the treasury, the books of the audit department and ef the transfer department. . You ale president and treasurer, are you not? ay am presidcut and nouinal treasurer, Justin D, White ts assistant treasurer and also one of the di. rector do bot Want to guess as to who has the power about the Erie concern if | have not of direct- ing these books to be brought here; J could not give an Intelligent answer on that point Without examio- | (ug the articles of associalion. Q. Is there any oflcer of the Erie Company who has that power?’ A. at charter. Q. Is there any other person who bas that power or Whose order (ne transfer clerk will obey? A. The transfer clerk has charge. Q. Apswer the question—I repeat the question. A. I give the same answer; | don’t know my powers; | this question Lever rose since [ became president of the company. ‘The Master—That 1s not the question here. I pre- aime you are aware, a8 an officer of the compan whether your orders will be obeyed by your suboi dinates,” | now ask you if they would fmauire whether you bad authority or noty A. No, sir, Q. The question (nen 1s, if you order those books to be produced here they will be produced or not I want to know, if yon send from here a written order to the officrais im the Grand Opéra House, whether | that order would not be obeyed and the books eae here if you direct’ A. (The witness paused for a long time, evidently staggered by the question, which was a poser; finally he suswered.) You ask me to give an opinion. ‘The Master—That 1a not the question. Wonld the books bo produced here if you so directed? A, Ldo not think either one way or the other. Q Then you have no Knowledge on the subject Whether your authority would be obeyed or Moty A. No, bir. i Mr. Southmayd asked for a suspension of tne ex- atuination Of this witness im order to resume the ex- aininauon of John A Hilton, the transfer clerk. ‘yhis application Was agreed to, and Mr. ton was further examined. He said the last ume he saw those books they were locked up in the safe in his oMice; he had “ag combination of the safe, unless it liad been altered, Q. If Mr. uid, f president of the company, now here, di d you wae Oe te os i ped e, u wafe aud bring down those quand eb A. The witness besttated ‘aud xaune very carefully | 4, | you, 1 had better confine myself to | can gave no other auswer ulu | look at the | several other questions to ask the witness, but hq could not ask them without the books, d The Master then adjourned the inquiry untll twelve o’clock on Monday, and directed all the wit neases to be in attendance at that ume, THE M’'CAHILL WILL CASE. Continuation of the Testimony—The 1. Hours of the Testator. The adjourned examination in the McCabill will case took place yesterday belore Surrogate Huteh- ings. There was &@ iarge attendance in the court? room, and the interest in the proceedings appears t@ be unabated. Ex-Judge Pierrepovt and Mr. Flana< | gan appeared for the contestant (the widow; \ McCahill), and Mr. Vanderpoel for the proponents. Mr. MeCahill died worth about $600,000, THE NEPHEW OF THE TESTATOR ON THE Stann. Bryan MeCahill was the first witness. estinedy as follows:—The testator, Bryan MeCahill, broughé me out to th ountry when I was ten years old. Q. What were his habits as to drinking Iquor? A. He was in the hapit of drinking; he was an in-4 temperate man for several years before his death: [! ealied to see him two weeks after the commence- ment of hia last sickness; before that 1 met hine frequently down the avenue; went to the second story of his house, where he Jay sick, aud called upon him dally; was with him when he diea. Q. Between that time and she time he aied what was hs datly condition’ A. He was sick, drinking continually, and he was very feeble; he used to rava and talk to himself; he used to exclaim, “Where am i?’ and he was tola in his house, im Forty-ninth street; “Am | not in a house on Essex street +” he said at one time that there were women im the house and that he wanted them put out; ! saw hine drinking; he took very little medicine; he kept drinking till the day before his death; T remember that | spoke to him one night whiie he was tthe sick chair; he said he’d like the famliy to come to~ ether and arrange as to how the property snoutd’ ye divided aid to him, “! understood you bave made a will; and be sald he bad; he satd he had lert a consideration for me; he said that Johm Mcvahili wes very ungrateful, and he was airaid to trust nim; that he was afraid he would notdo right with the family; ne sald tiat before and afer. Q. What did he say about ‘Yom MecCahill im con~ nection with the will? A, He said that he was afraid to trast Tom McCanill: on the Saturday two weeks previous to his death he said he desired to make a alteration in his will; he said, “1 shall send for my will and make an alteration in it,’ Q, From the time that you first saw him after his Jaat sickness till the day Of his death, from the fact¢ which you have stated, what would you say as his soundness of mindy Mr. Vanderpoel objected to the question and it wag verruled. ‘The question was then put in another form. Q. What ts your opinion as to whether deceased was rational or irrational whlie speaking to you? A. Irrational; deceased was under the infiuence of lauor ali the while, and he was incompetent to do anv business. ‘The latter part of the answer being objected to it ‘was ruled out. Q. What effect had his custom of drinking upor nis mental facuities? A, He was dull, raving and wandering in his Ideas in consequence of his per+ petual drinking. & Cross-eXainined by Mr. Vanderpoel—Mr. MeCabill talked to ine aout his property—his real estate; he said, “1 wish you to keep it and divide ft up among and not sell it;? he spoke on the subject three he was very clear 4 or four weeks before is deatn; the night he talked about the matter; he had not drank much: he joked rational at the time; the only conversation I bad with hii about the property was on the night I referred to; he seemed to be rational at that tne; when he’ spoke on other occasions about the property did not converse with him on the subject; he was drinking all the time; John McEvoy took charge of my uncle, the deceased, durmg his last filness; Johu attended tim tn the day time and Black Tow in the night ume; he often raved during bis last tilness; be Imagined that be was sleoping in @ tenement house in Essex street; ke asked me at times to drink with him. Q. Was he rational when he asked you to drink with him? A. paves thik any man who drinss constantly ts rational. Q wen he told you that he had left you a con- | sideration in his will dia you consider him rattonal or irrational? A. 1 did not consider hin rational; | he kept talking all the while; he told me in that and | Other conver-atioas that Tom was ungrateful; ne gaia that often during the last two or three years; when he spoke about Tom, before his sickness, appeared to be rational; when he told me he want to make alterations in his will 1 spoke to Brady | about it: I don’t recoitect what Brady saul to me on the subject; the deceayed said that he wanted to | get bis will back to alter it, a8 the folks were not using bim right and he desired to be boss of his pro- | perty while he lived; | nad a diMicuity with iny uncle some years ago; 1 did not strike him; I choked him, | (Laughter.) | Re-cross-examined—Mr, McCabill did nos tell me what alterations he would like to make in the witly | 1 don’t know that L had any difficulty with Tom | MeCanill. TESTIMONY OF COLONEL M'IVRLY. | Colonel William Nelvely tesutied—I have been ace | quainted with Bryan McCahill in his Iiterme; I saw him ofven during four years‘ almost ; | eew | him in fquor stores kept by Mr. Carroll and others; ; Taw bum assisted home while he was tn tH had adisagreement with Mr. McCalull at one thme, but became reconeiled to him, The examination was tien adjourned ull mext | Wednesday. THE TOOMEY_KOMiCiDE. New YoRK, April 20, 1871. To THE EpIToR OF THR MERALD:— In the repott of the Toomey homicide in yestere day's Herat | am made to testify that a blow over an empty stomach would be equally dangerous witty | one on that when full—a ope? erroneou@ opinion, tor which I do not wut hekt responsi bie. My evidence was that 1t would make Bo mate. rial difference whether such & blow was given whem the person receiving it was excited by liquor or was rec! sover, Mesvectfully, are, WOOSTER BEACH, M. 0, | }