The New York Herald Newspaper, November 26, 1872, Page 5

THE COURTS. JAY GOULD. ‘She Ten-Million Erie Railway Suit—Inter- esting Proceedings in the Supreme Court, Chambers—Affidavit of Jay Gould and Application Thereon to Discharge Him from Arrest or Reduce His Bail— ext Monday Set Down for Argu- ment of the Case—A Referce Appointed Meantime to Take the Testimony of Horace F. Clark and Au- gustus Schell. ——+__—_— THE RADCLIFFE DIAMOND CASE. a, The Difference Between an Informer and a Geizing Officer---Whitley, Chief of the Seoret Service, to Get the Moiety-- Judge Woodruff's Decision on the Writ of Error. The Steamer Java and the Anita Collision Case. ‘The Steamer Cutsthe Norwegian Bark in Two—Eleven of the Crew of the Lat- ter Drowned—Decision Against the Java—Damages To Be Ascertained by a United States Commissioner. —+. THE BONARD WILL STILL IN LITIGATION, ee hes Motion to Have the Real Estate and Personal Property Applied to the Uses of the Society for Prevention of Cruelty to Animals—Oppo- sition of Counsel—The Court Takes the Papers and Reserves Decision. eee BUSINESS IN THE OTHER COURTS. ee Sammarics—Motion to Vacato a Judgment of Arrest Denied —Decisions. Anew chapter was developed yesterday in the galt brought by the Erie Railway Company against Jay Gould to recover some ten million dol- Jara. This was an application on behalf of the lat- ter, made before Judge Fancher, at Supreme Court, @hambers, for an order to show cause why the order of arrest should not be vacated or the bail weduced. The order was granted and made re- turnable on next Monday. Meantime a referee ‘was appointed to take the testimony of Horace F, lark and Augustus Schell in the matter, to be used ‘®n the motion. In the United States Circuit Court yesterday a motion was made by counsel on behalf of the sure- ties of ex-Collector Bailey, of the Fourth and Thirty-second Collection districts, to open a de- fault which the government had taken against them. The suretics are the following gentlemen, who had, by bond, made themselves jointly and @everally liable to the United States in the sum of $100,000 for the duc and faithful performance of the ®x-Collector’s duty:—George Dougias, George Op- @yke, Elliott C. Cowdin, Thomas ©. Durant, Henry Clews, Augustus Schell and Charles P. Kirkland, Fhe government filed a declaration, and to this the fespondents filed a plea and answer. ‘The govern- ment then putin a replication, to which the re- spondents demurred. When the case was called yesterday, before Judge Woodruff, counsel tor the respondents claimed that he should have re- seived fourteen days’ notice of the motion, ‘accordance with the act of Congress of June, 1872, which makes the practice of the Court in this respect similar to that laid down in the code. The Onited States District Attorney took the opposite wiew ; he had given twelve days’ notice, and even four would have been suficicnt. Judge Woodrur reserved his decision. Yesterday Judge Blatchford rendered an im- portant and interesting decision in the United States District Court in the case of Petersen ana Another vs. The British Steamer Java. On the 25th of August, 1871, the Java came into collision in the Atlantic Ocean, at night, with the Norwegian bark Anitas, cut her in two, and eleven out of twelve of the crew of the bark were drowned. The survivor ‘was taken on board the Java. The Judge decides ‘that the fault lay with the steamer, and orders a @ecree to be entered for the libellant, with costs, reference to be had to acommissioner to ascertain the damages. In the United States Circuit Court yesterday Judge Woodruff rendered his decision on a writ of error in the well-known case of the Radcliffe dia- monds. While stating that there was no question of law before him to decide, he affirms the order of Judge Blatchford, which is to the effect that neither B.C, Whitley nor Friend S. Esmond canbe re- garded as informers in relation to the seizure of the diamonds, and, therefore, not entitled, as such, to the informer’s moiety, but that Whitley, as “seizing oficer,” has a right to receive the moiety fo question, which will probably be $1,000, The @amonds are worth $4,500. The examination of Julius A. Julian, who is charged before Commissioner Osborn with having Bent an obscene publication through the mail, is set down for Wednesday. Frederick Obersky, a youth of sixteen, was ar- Tested a few days since, as reported in the HER- ALD, upon a sult for atleged seduction and breach of promise of marriage, brought by Minna Fetbel, weveral years his senivr. A motion was made be- fore Judge Fancher at Supreme Court, Chambers, for his discharge from arrest on account of being a minor. Judge Fancher yesterday granted the Motion—a result that carries its own moral with It of caution to ladies of mature age not to be drawn lato the seductive meshes of youths of Immature age. A formal application was made yesterday in Su- preme Court, Chambers, before Judge Fancher by ‘Mr. William F. Howe, counsel for Rosenzweig, to transfer him from the custody of the State Prison euthorities to Sheri Brennan for committal to the ‘Sity Prison to await the new trial granted him by the Supreme Court, General Term. Rosenzweig qas in Court and certainly looked none the worse (or his several months’ sojourn in Auburn, Frank McCuen was brought yesterday on writ of habeas corpus before Judge Fancher at Supreme Court, Chambers, and his discharge asked from the Penitentiary, where he had been committed ona charge of petit larceny, Mr. Howe, his counsel, arged his discharge on the ground that the com- mitment fatied to specify the goods alleged to have deen stolen. This was held to be good lega) ground his discharge was ordered, Another case of habeas corpus was bronght yea- terdiay before the same Judge and the prisoner's Aischx'tge asked on account of a failure in properly making Ut the committing papers, The prisoner was Carr? Clayton and the offence charged solictt- ‘ng men ort.the strect for purposes of prostitution: Ur. McClellan, her counsel, showed that the atat- ate reguired a specification tuat ane augoyed pass NEW YORK HERALD, TUESDAY, NOVEMBER 26, 1872.-TRIPLE SHEET. ‘ers-by. Upon this showing the Judge ordered her discharge, JAY GOULD AND THE ERIE RAIL- WAY SvIT. His Side of the Story and Counter Cnarges Against His Prosecutorz—Ap- plication to Vacate the Order of Arrest or for Reduction of Bail—The Case To Be Argued Next Monday—Important Preliminary Evidence to be Taken. No one in New York at all familiar with the litig- fous antecedents of Jay Gould believed for a mo- ment that he would quictly submit to his recent arrest and not make some effort in the courts to extricate himself from the meshes of the law, into whose bewildering toils he seems to have been lately more deeply, and as many undertake to prophecy, more inextricably drawn than ever before. He did make such an effort yesterday, or rather Mr. 1. G, Shearman, one of his counsel, did for him. This effort showed itself in the form of a motion made before Judge Fancher, holding Supreme Court. Chambers, for an order to show cause why the order of arrest granted in the Erie Railway suit against him should not be vacated and the bail re- duced—said suit being, as is well known, to re- cover some ten million dollars from him, and the bail fixed at $1,000,000, All the particulars of this suit have been published in the HERALD, and also record of the fact of Jay Gould’s prompt response in furnishing the required bail. We now have Jay Gould’s own story), as embodied in his aflidavit sub- mitted to the Court yesterday in connection with the above motio&i. We give this afidavit in full. JAY GOULD'S AFFIDAVIT. City and County of New York, #s,:—Jay Gould, of said city, being duly sworn, savs—Mhat the afidavit’ot P. H. Watton and Henry N. Smith in this cause, verified respec: tively on the 2st’ and 22d days of November, 1872 in all respects in which they charge or appear to charge any fraud or false or wrongful entry oF statement of accounts or other wilful act to the prejudice of the plaintiff in this cause on the partof this deponent are utterly untrue; and, as this deponent is advised and helleves that the, Court will not hsten to affidavits disputing the cause of action npon a motion to vacate an order of arrest, dep o- nent, by advice of counsel, refrains tem setting forth the full truth in regard to the transacti#ns referred to in the said affidavits, except to the extent hereinafter set forth, 2. That the President of the plaintiff, Mr. Peter H: Watson, never had and has notnow any personal knowl- edge concerning the tacts set 1orth in his ailidavit, except asto tho fact that he 1s President, and as to his knowl- edge or the entries upon the book of the Erie Railway Company, and possibly the said Watson may have had access to the books ot Smith, Gould, Martin & Co., which Dooks, however, were nol kept under the orders oF super- vision of this deponent, unless the fact that he was one of the partners in the sald firm necessarily Involves the legal conclusion that the books of the four were kept un- der his supervision. ‘That with these exceptions all the allegations in the affidavit of the said Watson are neces- sarily made WITIOUT ANY KNOWLEDGE OF THE FACTS upon his part. 3. That so ir as the said affidavit contains any matters of fact the sie are perverted and caused to appear in a alse light so a8 to deceive the Court by the suppression of other facts which were and are well known to the said Henry N. Smith, and of which the following is an example, to wit:—It'is alleged in ihe affidavit of said Watson that a large number of shares of stock were pur- chased for account of the Erle Railway Company and entered upon the books of Smith, Gould, Martin & Co. on the 5th day of August, 1859, at the average price of $6i 47 per share, while at that time such shares were only worth the suin of $29 per share, the fact being, as was and Is Well known fo the said Smith, trom whom alone the said Watson derived all his ° information upon the subject, that the said stock was all purchased at somb time in the year 1868 at the actual prices charged and when the same was selling in the market in the city of New York atsuch prices, and at even higher rates; and deponent belicves‘and charges that the sald afdavit Was drawn in the present form for the express purpose of inducing the Court to believe that the purchase aforesaid was pretended to be made at $61 and over at the very time when it wag selling at $29, while in troth and in fact the counsel who drow such afildavit, had been informed by the said Smith that the price of $29 was the market price only at the time when the final entries were made of the transaction, in August, 1869, the transaction itself having taken place nine months previously, when the market price was actually over sixty-one dollars per share; and deponent, further helieves and charges that the ailidavit was so drawn, with intent thus to DECEIVE AND MISLEAD TRE COURT, 4. That prior to the making of the said aMdavits the plaiotifl, its president, and counsel well know that the plaintiff had executed a release to this deponent covering all the matters and things set forth in. the said affidavits in manner and form as hercinaiter set forth, and also Knew of the existence npon the records of the plaintiff of the resolutions which are hereinatter set forth, and had notice of all the facts relating to such resolutions and releases which are hereinafter stated, and deponent be- and charges that all those {acts were purposely suppressed by the plainii, won making its appheation for the order of arrest’ in this ca intent to deceive and misiead the Court, and for the very reason that the agents of the plaintiff! who applied for such order of arrest feared that. they could not be able to obiain itif they frankly stated such iacts to the Court. ‘That on the 30th day ot December, 1871, a meetii of the Board of Directors of the plaintiff herein was at its office pursuant to notice, as given to every member therein, at which meeting the majority of the said directors were present, and of whieh the dée- ponent, James Fisk,Jr., and RacHick A. Lane, Lereinafter mentioned, Were none ot them present, and in which they did not any of them participate, and whi altogether free from their influence and control which meeting, as the... deponent js informed believes, it was unanimously resolved that a_gen- eral release should be ranted to this depo- nent, and the said James Fisk, Jr, and Frederick A. Lane, in manner and form as hereinafter set forth, and that a coinmittee of said Board, consisting ot John Hiiton and Henry Thompson, two ol the directors of the Naintifl, should be instrveted to execute such release in he name of the plaintiff, and that the Secretary or Assistant Secretary should be directed to attest the same aud to affix thereto the copore seal of the plaintit?, 5, Thaton the Ist day of January, 1872, the piaintiff, by the commitiee appointed as aforesaid, to wit, John Hil- ton and Henry Thompson, duly executed and di release to the deponcnt and to the said James Fisk, Jr., and Frederick A. Lane, under the corporate seal of the plaintiff, attested by the Assistant eretary of the plaintiff, which release was in the Words and figures tol- lowing, 10 Wit:— THE GENERAL RELEASE. “To all to whom these presents shall come or may con- cern, greeting :—Know hs that the Erie Railway Com- corporation of the State of New York, for and in con: ration of the sum of $1, lawful ered of the United States of America, to it in hand pai Gould, James Fisk, Jr. Frederick A. does “hereby absolve them and each of them, their and cach of their heirs, executors and admin: istrators, of and from all and all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, sp clalties, covenants, contracts, controversies, agreements, variances, trespasses, damages, judgments, ex: tents, executions, claims and ‘demands’ whatsoever in law or im equity, which against the said Jay Gould, James Pisk, Jr., and Frederick A. Lane, or any one or more of them, it ever had, or now hath, or which it, qnay have on or by reason of any matter, cause or thing what. from the beginning of the world to the Sist day of ber, 1871. In witness whereof the said Company hath caused these presents to be signed by a committee appointed by the Board ot Directors of said compan; and by the authority and order of the directors and stockholders thereof, and {ts corporate geal to be here- unto affixed the 30th day of Decemser, 1872, Sealed and delivered in the presence of Gxoncr W. Poncnur, Corporate THE ERIE RAILWAY COMPANY. Seal of Erie By JOUN HILTON, Commit- Railway Co. HENRY THOMPSON, } “tee. Monten Surrn, Assistant Secretary.” TRE. CAUSES OF ACTION, 6. That, all the cauves of action arising in this suit, as set forili in the said affidavits of Watson and Smith, arose rior, to the granting of each and every one of said ro- leases, and before and at the time of the execution of suid release and the passage of said resolutions it was well known to all the directors and stockholders who were present at the meetings aforesaid that charges had been made against this deponent, covering in substance the whole ground of this action and the proceedings aforesaid were intended by such directors and stockhold- ers to put an end to all litization respecting the matters set forth fa the said afidavits or involved in this action. 7. That at the time of the arrest of deponent in this ac- tion deponent was and been for some days very ac- tively and constantly engaged in dealing in shares ot the Chieago and Northwestern Railroad Company, and had very large aud numerous transactions ip such sliares, aud was EXCAGED IN A LARGE MOVEMENT to advance the price thereof, all of which, as deponent is informed and believes, was well known fo the attorneys for the plaintiff In this action and to a committee of the Board of Directors of the plaintiff to which the entire management of this action was entrusted by the Board, which consisted of 8. L. M, Barlow, William B, Duncan and William R, Travers, 8. That on the day of this deponent's arrest Henry N. Drew, William R. Travers and numerous who, as deponent is iniormed and believes, nfidential friends of the said Barlow, were engaged in a speculation to je said shares and had sold a large number of such shares, which they did not own, in the expectation of biying them’ in the market, when the time came’ for delivery, at a lower price, and thus realize a large promt, and, as deponent is inforjned and believes, the said order of Arrest was pro- cured and served upon that particular day in the cx- pectation and for the purpose on the partot the suid at orneys and the said committee of depress the PRODUCING A PANIC IN THR, MARKET and causing a large fail in the market price of the said shares, and for the purpose of enabling the said Smith, , Travers and other persons aforesaid to realizd profits upon these transactions, 9, That, as deponent is informed and believes, the plain- tiil's attorneys herein applied for an order holding this defendant to bail in the sum of $9,700,000, and strenuously urged stich a proceeding upon the Judge who granted the order; (hat in so doing they Were acting under the ad- vice and encouragement of the said Menry N, Smith, Danie] Drew, William R. Travers and other speculators for a fail in the price ef ‘such stock, and in the content belief and expectation that this deponent would be. un- able to procure bail in any such amount and would be compelled to remain under arrest, leaving HIS BUSINESS TO GO'TO RUIN; and if deponent had been unable to procure bail itis his fuil belief and conviction thata panic would have been produced upon the market, and thathe would have susiained losses to an enormotis amount, which would have putitentircly out of his power to pay any judg- ment which may be recovered against hin in this action or any other, And deponent belleves and charges that such @ result was expressly contemplated by the at- torneys for the complainant and by the said committes having this suitin charge, and by the persons aforesaid contederated with and advising them ; and that, although ail the said persons believed and were confident that the imprisonment of this deponent would produce this result, thereby depriving the Erie Railway Company. of. an; possible opportunity to collect any {udqment whic tt gight recoverin this actlon, they persis'eil In thelr design 7 aforesaid for the express purpose of enabling thei- Seives and thelr friends to succeed m. ° . TITEIR PRIVATE SPECULATIONS, and of accomplishing the financial ruin of this deponent, and thereby making it impossible for the plaintit! to col: lect anything In this action, in total disregard of the pro- tended object of the action, and with a perfect eonscious- ness that the plaintif’ herein could not be effectually served oF profited by any such course of proceeding. 10. That, as deponent Is informed and believes, the fact that the platntift’s attorneys intended to obtain and serve the said order of arrest upon the day when it was actually served was made known by the said committee to many persons engaged in stock speculation for the purpose of evabling such persons to operate in stocks In expectation of a panie, and that when the said order was actually served onc of the pltintits attorneys came in ereon ty attend to ite service, bringing with him a large ‘oWd of person# Who had no connection with his offi fe wit) the plaineg in this cam. but ts hasty Joinrmse tion had been given that such arrests would take place sad. cemated fu mites saeco a Ra ‘ol spreadii e news thro Bhd thereby ‘causing the pamic which, as plaintift 18 in- ba Ed noreves. alle | Earsone, heving anytiing to Sworn, ce. Areatenpec JAY GOULD, Novsmnxn 25, 1872, JUDGE FANCHER’S ACTION, Upon reading the above aifidavat Judge Fancher, as in duty bound, granted the motion and set down the hearing of the argument in the case for the first Monday in next month. EXAMINING WITNESSES, Mr. Shearman stated that the depositions of Mr. Horace F, Clark and Mr. A) tus Schell were Recessary to be used on the ve motion. Th Statement was based on affidavits of Charles T. Brewster and A, L. Smith. These aMdavits state nothing of importance except allegations of the materiality of obtaining the testimony of the gentlemen above named. Judge Fancher at once appointed A, K. McDonald a referce, to take their testimony, and signed orders directing them to appear before the referee at such time and place as the latter might designate, Thus the case stands at present. The proba- bility is that there will bea lively time in Court when the matter comes before it again, THE RADCLIFFE DIAMONDS. What is the Difference Between an “In- former” and “a Seizing Officer 1”—Es- mond Out In the Cold and Whitley, Chief of the Secret Service, to Get the Moiecty Out of the Diamonds—A Big Haul for the Officer, Yesterday Judge Woodruff rendered his decision on the question recently argued before him on writ of error as to whether H. ©. Whitley or Friend 8. Esmond is entitled, as informer, to the moiety out of the Radcliffe diamonds, which were seized in this port over @ year ago, after having been smuggled from England. There hus been @ long legal wrangle between H. C. Whitley and Esmond as to which of them should be considered the first informer. Whitley claimed all through that he 18 enti tled ‘to be considered as such in this case, and therefore the person to whom the moiety out of the value of the diamonds, which are worth $4,500, should be paid; while, on the other hand, Esmond’s po- sition in the matter was that he, having been in the employment of Radcliffe as travelling agent for tne sale of the diamonds, was the first to denounce Radcliffe to the author- ities. It will be seen from the subjoined decision that neither Whitley nor Esmond gets the moiety as informer, but that it goes to Whitley as ‘‘seiz- ing officer.” Judge Woodrut, in his decision, says :— ot e property proceeded against was seized by the oficers of the United States, and, on informa- tion filed, was condemned in the District Court as forfeited because it was introduced into this country without the payment of duty. After “ condemnation H. ©, Whitley and Friend 8, Esmond severally applied to the District Court for an order adjudging them tobe the informer entitled to share in the pro- ceeds of the condemnation. (14th Statutes at Large, p. 646, section 1.) The District Court, on a contest between the tw gjalmants decided and adjudged that neither of then wad the first in- former, nor entitled as such to share in the pro- ceeds, and there being no claimant the Court de- cided that H. ©. Whitley, as seizing officer, was entitled to share the proceeds. Thereupon a writ of error was allowed for the purpose of correcting what Esmond alleged to be error in the order of the District Court to his prejudice. Judge Wood- Tuff says that a writ of error brings to the consid. eration of this Court questions of law only. He finds no error of law which calls for a reversal of the order of the Court below, and aflirms it ac- cordingly, IMPORTANT COLLISION CASE. The Steamer Java Cuts a Norwegian Bark in Two and Drowns Eleven Out of Twelve of Her Crew—Decision Against the Java—Damages To Be Ascertained by a United States Com- missioner. In the United States District Court yesterday, Judge Blatchford rendered a decision in the case of M. Petersen and another vs. the steamer Java, her engines, &c. This was a libel to recover damages for acollision, On the night of the 25th of August, 1871, shortly before half-past ten o’clock, the steamer Java, while on a voyage from Liver- pool to New York, came into collision in the Atlantic Ocean with the Norwegian bark Anitas, striking with her stem the port side of the bark a square blow and cutting her into two parts, so that the steamer passed between such two parts, and they sank almost instantly. The bark was in ballast, on a voyage from Portsmouth, England, to Miramichi. Of the twelve persons cbmprising her crew ELEVEN WERE LOST. The survivor was asleep below, and was awaked by the noise of the shouting from the deck of the bark, and hurried on deck only to arrive there after the blow, and to find the vessel sinking under him. He wag saved by swimming, and was picked up by the Java, He wasa witness for the libel- Jants, and their only witness. All he can tell is what is told above. The night was durk, there was a drizzling rain, the wind was southwest, or more westerly, the Java was heading west-northwest, with the wind and sea on her port bow, and a cross-sea from the northwest—the rem- nants of a wind from that quarter. The sea was heavy and the Java was pitching a great deal, The bark was on her starboard tack, and ‘was crossing the course of the Java, The speed of the Java at the time was about ten knots an hour, The libel alleges fault in the Java in not meerine a proper lookout, in not seeing the bark and her light, in proceeding at too greata rate of speed, and not intime taking steps to avoid the bark. ‘The answer alleges that the Java had TWO PROPER LOOKOUTS, PROPERLY STATIONED, and attentive to their duties, but that the bark was not visible until less than a minute before the collision, when one of the lookouts discovered and reported a faint white light nea right ahead; that sach light almost immediately disappeared and a red light was seen in its place; that thereupon the heim of the Java was put hard-a-port, and her engines were stopped and reversed, but she struck the bark; that the bark was sailing without any colored : lights; that just before the collision she improp- erly changed her course to cross that of the Java; that she did not discover the Java until just before the accident, when she first exhibited the white light and then the red light, which were seen by the Java as soon as they were exhibited, and that the collision was caused exclusively by the want of good management of the bark. Judge Blatchford goes on to say that it was the duty of the steamer to avoid the bark or to show a@ satisfactory excuse for not doing so. He enters very fully into the facts and circumstances of the case and concludes by stating the allegation that the bark course to cross the course of the steamer, there is no evi- dence to support it. There is nothing to show that she was not sailing as close as she could to the wind while beating and porening her voyage. There must be @ decree for the libellants with costs, and a referauce to a commissioner to ascer- tain the damages, Beebe, Donohue & Cook for the libellants; Daniel D. Lord for the claimants. THE BONARD WILL STILL IN LITI- GATION. Motion to Have the Proceeds of the Real Estate and Personal Property Paid to the Society for the Preventian of Cruclty to Animals=The Court Takes the Papers. The Bonard will litigation was again brought up in the Surrogate’s Court yesterday, before Sur- rogate Hutchings. Mr. John B, Boyd made ap- plication to the Surrogate to be permitted to insert an amendment in the decree as proposed relative to his appearance inthe case. Mr. E. T. Gerry objected to this course, on the ground that the question as to Mr. Boyd's appearing for Mr. Bergh had ‘already arisen, and been settled by the Surrogate by order of October 31, 1871. The Sur- Togate took the papers and announced that he would settle the decree and file it as of that date, Mr. E, T, Gerry then made another motion on behalf of the Society for the Prevention of Cruelty to Animals. He explained that the application was made by that society, who were the devisees named in the will, and its purpose was to obtain an order, to be forthwith made, that the receiver should pay over to the society the rents, &c., col- lected by him, and to deliver to the society the pos- session of the realestate, The motion recites the formal proceedings in the probate of the Will, and claims that the society takes the Dh hed by independent act of the Legislature of the State, to who the property escheated. It was, in fact, an application by the society to transfer the rents and profits to the rightful owners, in point of law. ‘The real estate at the moment of his death vested in the society, and was transferred by it to them by an act obtained 1n 1871, and the decree stated that no heirs have appeared, He submitted that the motion was a proper one, and tendered a cer- tifed copy of the act of 1871 in support of his argu- ment. That act gave them rightful possession of the rents and profits, and the order should, there- fore, be at once made, . Coudert, In objecting to the motion, said there a Statement at the bottom of the petition which was not correct, and while he exonerated Mr. Bergh, the Boobie tZ; and his counsel from attempting to do anything which was either un- professional or wrong, yet Mr. Bergh had put on Tecord @ ptajemept whinb hia counse) muet have known to be inedrrect. It would be found in the first par , And was to the effeet “that Louis Bonard, @ native of France, died op the 20th of Februaty, after having daly execnted his last will, dated the 14th Februar: 71, which was duly ad- mitted to probate.”’ fe would admit that bis learned friend might have considered this @ mere matter of form, yet he was of opinion it deserve’ censure from the Court, as, in order to “head them off,” this petition had actually been made in ad- and Mr, Bergh had sworn that @ de- cree nad been entered at least @ week in advance of its having actually been entered, and he maintained that when friend assisted or advised Mr. bt to swear at large thas this decree was entered on some day, which had never come, the petition certainly should not be nted, He denied that it was @ mere form of for it Was sworn to on the 14th day of November. ‘The Surrogate objected to have the argument re- newed, but asked that Mr. Bergh should swear to the petition bejore him on that day. Mr. Gerry was willing, in order to remedy the aad to have the petition Immediately re-sworn Mr. Miles claimed that the first will was valid as to the real estate, and that it could be put into no other hands than those of the Court. Mr. Gerry said the act provided only for heirs who were capable of holding property, and ho asked that the officer who stood between them and their gaining possession should be removed. Mr. Niles claimed that he represented the real estate, If the first will conveyed the real estate the second will conveyed all the personal estate ; and he claimed that the apes legacies to his clients must be paid out of the real estate. ‘The Surrogate took the papers and announced that he would file his decision in a few days, THE M’OUNN WILL CASE, Upon application of counsel the adjourned hear- ing of this case, which was fixed for yesterday, ie Boathoned until Wednesday next, at eleven o'clock, THE ANDRIE WIFE HOMICIDE. Close of the Trial—Summing Up of Coune- seleJudge Bedford to Charge the Jury This Morning. The trial of Emil Andrie for shooting his wife, which occupied most of last week in the Gen- eral Sessions, Judge Bedford presiding, was brought to a close yesterday. As it was stated in the HERALD that the closing arguments of the dis- tnguished counsel would be made the court room Was filled with interested spectators. Mr. Charles W. Brooke proceeded to sum up the evidence, and in a lengthy, logical and eloquent argument to the jury endeavored to demonstrate that the testi- mony showed beyond all doubt that Andrie was not of sound mind at the time of the killing, but was acting under an uncontrollable impulse. District Attorney Fellows followed in a powerful address, claiming that the testimony showed that the prisoner was guilty of murder, He criticised in severe and scathing language the medical testi- mony adduced to establish the defence of emo- tional insanity. Colonel Fellows closed his argu- ment at half-past six o'clock, having spoken four hours and a half. Judge bedford said that he would either proceed to charge the jury or post- pone ft till to-morrow morning. A vote Was taken, and eight gentlemen being in favor of adjourning, two 9! whom were old men, the Court adjourned till Tuesday, BUSINESS IN THE OTHER COURTS. COURT OF COMMON PLEAS—SPECIAL TERM. Motion to Vacate an Order of Arrest Denied. Before Judge J. F. Daly. Stoppani vs. Gottsberger.—Judge Daly in denying the motion said:—Motion to vacate order of arrest on the ground of the insuMciency of the aMdavit on which the order was issued, Upon perusal of the afidavit it seems to me that a prima Jacie case of fraud and fraudulent representations is made out, One defect in it, as defendant claims, is that there is no statement that the representations were made to induce plaintiff’ to advance tle money; on the contrary the afidavit states that the defendant made the false representations to plain- tif and “then applied” to plaintiff te advance the $2,500, There can be no otter inference or conclu. sion drawn from this language than that defendant made the representations to induce plaintiff to lend the money, As to the other grounds of defendant's exception to plamtili’s afidavit, I hold that the representations being of particular facts concerning defendant's own business afairs— his debts, resources and the amount of business he was doing—with all of which he must have been familiar at the time he made the representations, it is suticient to show that such representations were false without an averment that defendant knew them (Marsh vs. Fuller, 40N. Y., 662) ; also that the representations were as to material facts induc- ing plaintiff to part with his money, and were fraud- ulent if untrue; also, that although the $2,500 was aavanced at different dates, it appears that it was all given upon the faith of the representations made at first, and there is no proof that up to the last payment plaintiff had evidence of the falsity of the statements up to and at the time they were made, Motion dented, J.M. Shehan for the motion; C. T. Wetmore op- posed, SUPREME COURT—SHAMBERS. Decisions. By Judge Fancher. ine Matter of the Application of William W. HéWitt,—Motion granted and reference ordered, Daly vs, James H. Burchell.—Motion to compel purchaser to complete the purchase granted, (See opinion.) COMMON PLEAS—SPECIAL TERM. Decisions. By Judge J. F. Daly. Meagher vs. Meagher.—Motion denicd. Kukeler vs. Ritter.—Motion denied, without cost. Stoppani. vs. Gottsburger.—Motion to vacaie order of arrest denied, Terhune vs, Wicks.—Counsel must furnish me With the afidavits on which the order of arrest was granted, COURT CF GENERAL SESSIONS. Rosenzweig Committed to the ‘Tombs. Before Judge Bedford. Yesterday “Dr.” Rosenzweig, who, it will be re- membered, was convicted of the crime of abortion, and for whom Mr. Howe procured a new trial, was pau ne from Auburn Prison in charge of a Deputy eritt. ‘The City sudo committed Rosenzweig to the Tombs without bail, to await his trial, which will Probably not take pi UNITED STATES SUPREME COURT. .F “Dr.” jace till January, Important Decision in the Louisiana Sulit of Delm: vs. The Merchants’ Mutual Insurance Company=—The Sap- plying of Alleged Unserviceable Arms to the Troops During the War. WASHINGTON, Nov. 25, 1872, The following decisions were rendered to-day in the United States Supreme Court:—In the case of Delmas vs. The Merchants’ Mutual Insurance Company, from the Supreme Court of Louisiana, the question was upon the authority of the consti- tution of the State to render a contract void be- cause it was based upon Confederate money as its consideration, The Court below found that Del- mas had the prior claim to a certain fund; but that, as the consideration which estab- lished his claim was Confederate money, it failed, and the ivsurance company, whose claim was subsequent, but based on a valid considera- tion, was entitied to the fund, This Court say, in substance, that if the judgment below had decided that the contract underlying Delmas’ claim was void, from public policy existing at the time, there would have been uo question for review here; but asthe judgment is based upon a provision of the constitution of the State, framed after the contract was made, which declares all contracts shall be adjudged void which are founded on a considera- tion of Confederate money, it will have to be re- versed, a8 having sustained a law repugnant to that clause of the federal constitution prohibiting the States from making any law which shall impair the obligation of contracts, Mr. Justice Miller de- A DOOMED MURDERER. Henry Rogers, the Assassin of Policeman Donohue. Judge Gilbert Denies the Application for a Writ of Error and Stay of Proceedings. The Conviction a Righteous One and Justice Must Not Be Delayed—Rogers To Be Hanged on December 6, Judge Jasper W. Gilbert, of the Supreme Court, Brooklyn, yesterday rendered a decision in the case of Henry Rogers, the convicted murderer of police- man Donohue, denying the application for a writ of error and stay of proceedings. The prisoner was convicted of murder in the first degree at the October Oyer and Terminer, and Judge Gilbert sentenced him to be hung on the 6th of December next, The murder was committed on the 7th of July last in the neighborhood known as ‘Battle Row,” North First street, near Union avenue, E. D., which ‘Was the rendezvous of a gang of rufians and thieves, ofwhich the prisoner was a prominent member. Rogers was defended at the trial by Messrs. E. G. Davis and Edson, who were assigned by the Court; but after the conviction Colonel Spencer wag re- tained, and on Saturday last made an application for a writ of error and stay of proceedings. WHY JUDGE GILBERT WOULD NOT GRANT THE WRIT AND STAY, In his “opinion,” which is quite a lengthy one, Judge Gilbert said that, as the time was so short, he had, at the solicitation of counsel for the prisoner, consented to hear the application, not- withstanding no bill of exception had as yet been hot be regularly made. The counsel for the prisoner were mistaken in supposing that tho prisoner was entitled to a writ of error as a matter of right, On the contrary, the statute expressly provided that writs of error upon a judgment ren- dered on an indictment for a capital offence should not issue unless allowed by one of the justices of the Supreme Court, upon notice given to the Attorney General or the District Attorney of the county where the conviction shall have been had. The power conferred oy statute to allow a writ of error in a capital case was a high judicial power, and the exercise of such power depended not upon the discretion of the Judge but upon the particular ease out of which such power arises. Before al- lowing the writ the Judge should be satistiea that there was probable cause at least to believe that the Appeliate Court would reverse the judg- ment. Nor could Judge Gilbert consider any al- leged errors to which no exceptions were taken. ‘This remark seemed proper, although he had dis- covered no such errors in the case, because the prisoner’s counsel in the argument before him went outside the exceptions and discussed many oints which, under the rule, could not be a sub- ject of review. ‘The first exception urged was a3 to the admission of the question put to the physi- clan, whether the club with which THE PRISONER STRUCK THE DECEASED could by one blow produce the result which he described on his examination asa witness, Judge Gilbert thought that this was clearly competent. The next exception was as to the question put to the same witness—‘'Is it quite as likely that that blow might havo been produced from the stone thrown against the skull as that it was produced by the wood?” ‘The Judge held that this question was properly excluded, as it called for an opinion of the witness upon a mere probability without any basis in fact. The next exception was to the exclusion of an offer by the prisoner’s counsel to show that, at or about the time of the offence, the pubonet and other parties were in the habit of frequenting the spot where it was committed at certain hours of the night and taking sticks and playfully slapping sleepers found near to show the want of premeditation on the part of the prisoner. This was properly excluded, because it included acts of parties other than the prisoner. But evidence of the same acts by the prisoner was admitted, The prisoner’s counsel, at the close of the charge of the Court, requested the presiding Judge to charge each of several propositions sub- mitted by him. The Court declined to charge tur- ther than it had, and the prisoner’s counsel ex- cepted. Judge Gilbert said he understood the rule to be well settled that a Judge was not required to charge the jury or to refuse tocharge them specific propositions, but that it was quite suflicient if he charged substantially upon the legal propositions, as requested, so far as they were pertinent to the questions involved in the case. Upon a carelul review the Judge said he was UNABLE T0 DISCOVER ANY OMISSION in this respect. Several of the requests did not relate to any rule of law, and asked for particular comments upon the testimony, and were very properiy disregarded by the Court. It was urged that the Court omitted to call the jury’s attention sufficiently to the distinct characteristics of mur- der and manslaughter. The sodge. said that part of his charge relating to this subject was a sub- stantial compliance with the request to charge on that subject, and if not the case was barren of evi- dence to warrant a reduction of the crime from murder to manslaughter. Other exceptions were considered and declared to be untenable, With reference to the exception taken to the empanelment of the last juror His Honor said:— On the call of the jurors—all having been regularly drawn and summoned, there were several absentees Whose names were not laced im the box. The eleventh juror Raving been empanelled the names in the box were exhausted. The Clerk was then ordered to call the absentees, which, being done, one only was resent. He was ordered to take his place in the jary box, to which an exception was taken. The juror was challenged for principal cause and to the Javor, and being found qualified took his seat and served asa juror, I don’t think there was any error in Be ae ifn aay seotpatoal meade cone be 89 considered {t could pot have prejud the prisoner. eers belge but one Rime, by aed originally placed in the box, it would have been drawn before or when it was in fact called, and it is immaterial which would have happened. To have placed his name in the box when it was in fact called as an absentee would have been AN IDLB AND USELFSS FORMALITY. Finally, if it were probable that any of the pro- livered the opinion, In the case of the United States ya, Justice, from the Court of Claims, this Court reverse eiuseuest for about eleven thousand dollars rendered by the Court below against the government on a contract with the claimant to furnish arms during the war. The Court say that after reading the evidence in- corporated with the tea | of facts by the Court it is impossible to escape the conclusion that the arms furnished by Justice were unserviceanle, and even unsafe ‘for the troops to bandie, whether they were equal to the sample exhibited or not. it is also held that the settlement made between the department and Justice was a bar to the action, and that it is just to infer from the circumstances that at the time it was made the claimant intended to ac- quiesce in the decision of the Ordnance Bur Mr. Justice Davis delivered the opinion. COURT OF APPEALS CALENDAR, ALBANY, Nov, 25, 1872, The following is the Court of Appeals day calen- a Gi November 20;—NO8, 840, 484, 489, 409, 4, 94, ), 301, No tidings have yet been obtained of Timothy Brophy, who so mysteriously disappeared a week Ince from nis house, about two miles west of terson. ‘The most diligent search has been made a body, even to dragging the river, but ai) in ceedings complained of were erroncous, the al- leged errors bear so little and s0 remotely upon the merits of the case that NO COURT WOULD BE WARRANTED IN REVERSING TOE JUDGMENT, To use the language of the Court of Appeal “Whereas in the present case it is a0 parent and obvious that the supposed errors did not work elther injury Or injustice to the accused they do not call for the reversal of the conyiction.”” Having arrived atthe conclusion that the prisoner was rightfully and legally convicted, 1 cannot retard the execution of the sentence of the law. A Judge who, from sympathy for the accused or from any other cause, should do so would inflict an unjusti- fiable injury upon the public interests, The appli- cation 18, therefore, denied, THE LAST RESORT, A representative of the HERALD met Mr. F. G. Davis, one of the prisoner's counsel, who stated that they would now make application to another Judge of the Supreme Court for a writ and stay, and, in event of a failure there, they will, asa last’resort, appeal to Governor Hoffman for'a re- spite until the case can be argued at General ‘erm. Mr. Davis conveyed the intelligence of Judge Gilbert's decision to Rogers, atthe Raymond Street Jail, The pry a ‘was discouraged, but had little to say on the subject. A FINANCIAL FALL, The Alleged Failure of a Silk Manufac- turer im Paterson—The Liabilitics $300,000. Vonsiderable excitement was occasioned in Paterson yesterday by the reported failure of John ©. Ryle, proprietor of the Murray Mill Silk Works, The facts are briefly stated to be as foliows:—Two or three years ago the Murray Silk Mill, then owned and run by Mayor John Ryle (uncle of John ©.), Was completely destroyed by fire. This dis- aster is the cause of the present failure, Alter the fire the Ryle Silk tibet aE Ri ah ‘was or- ganized, and the stock was subscribed, payabie in three years, capitalists from both home and abroad ‘investing. Everything went on well, with every prospect of paying the bonds at the specified time. In the meantime the property was trans- ferred to John C, Ryle, one of the incorporated company, who has since run the business, An un- expected depression of the silk trade, however, made it impossible to meet the maturing bonds without borrowing, which was done; but the con- tinned duiness of the trade rendered it an impos- sibility to take up all their paper, and, the notes Ol! to protest, the concern ha: failed. The abilities are said to be $300,000 In excess of the onsets, It stated that if capitalists will step in and invest in what will un- doubtedly pay, in the end the establish- ment’s credit can be redeemed, This, however, ig somewhat improbable, and consequently the concern may be considered ‘gone up’? Although nobody, not even the creditors, seems to be very severe upon Mr. Ryle, inasmuch as he did his best to avert @ catastrophe which no living man could have prevented, stillhe evidently felt in- capable of meeting his friends after such an event and has temporerily left the city, The universal udlic sentiment seems to be that of sympatiiy. r. Ryle has al resided in Paterson and been the soul of honor and integrity. Owing to his ab- sence it is impossible to ascertain detailed facts one fgures or Jeara what course will probably be e settled, and for that reason the application could F PIGEON SHOOTING. ‘Two Matches Between lard and Jaffray—Mr. ‘Winner of Both. At Dexter’s Grounds, on the Jamaica road, two pigeon matches were shot yesterday afternoon, be- tween Messrs, George Lortilard and Horace S. Jaffray, the first for $1,000 aside, at fifty irda each, thirty yards rise and eighty yards boundary, one and a quarter ounces of shot, five traps to ba used, the trapper to pull either trap without the shooter belng apprised of which one he intended to pull until the trap was down and the pigeon exposed. This 1s a style of shooting much in vogue in England among the Gun Clubs at the present day, and is being introduced into this country by soma of the members of the clubs in this neighborhood.’ This match was a very close one throughout and was won by Mr. Lorillard by one bird. ‘The seeond match was for $500, at thirty-five yards rise; the other conditions the same as in the first match. as match was also won by Mr, Lorillard by one ind, + Scon after noon members of the Jerome, Long Island and Staten Isiand Gun Clubs began to con- gregate at the trysting place, and at one o'clock the principals in the match came on the ground. Ira Paine had all the traps arranged and the Pigeons at hand. ‘The cords attached to the five traps were held to the earth by irom prongs, with rings in their heads, being driven in the ground, and through which the cords passed, These were covered over with hay and completely concealed from the shooters, When Mr, Jaffray arrived he objected to this arrangement, | and contended that the cords should be exposed to! view and that they should be taken out of the rings in the prongs. Censiderable discussion followed between Mr. Deforest, the umpire for Mr. Jaffray, and Mr. Staples, the umpire for Mr. Lorillard, aud for some time fears were entertained that the match would not come off at all, However, after long parley Mr. Jatfray carried his point, and the’ shooting began, Mr. Jaffray using a double-bar¢ relled fourteen bore muzzle-loader, made by John Mullin, of New York, while Mr. Lorillard used a double-barrelled muzzle-loader of eleven bore, made by Stephen Grant, of London, Mr. Miller was appointed referee, The shooter® had the privilege of using both barrels of their guns, and in case they missed with the first barrel they were allowed to use the second, Mr. Jaffray was the favorite, but odds were nod. given on him. Mr, Lorillard offered to wager $700 to $1,000 on himself, but he did not meet with a Tesponse, Mr, Juffray then offered $500 on himself, without takers. Bets were made on the number of birds killed, those who knew the difference be~ tween long and short range at pigeons having greatly the advantage in the betting over the unin4 itiated, The shooting was considered good by experts, while those who were not practically fa~ miliar with the business, and who had been accuse tomed to witness matches at twenty-one yarda Tise were ofa diferent opinion. The pigcons wera Messrs. Lorile Lorillard the as fine a lot as were ever seen, being extremely fast on the wing aud very quick in leaving the traps; and when they drove away straight fromy the trap it was next to impossible to overtaka If the first fre did not bring the Another them with shot. bird dowfi the second was sure to miss. pecullarity about these pigeons was t vitality. Bome of them would be Knoc! to all appearauces dead, but they would rise agaip and fy away. Several instances of this kind oc- curred, and Ira Paine said that he thought these * were as fine if not the finest lot of birds that ha ever produced at a match. Paine handled the birds and trapped for both gentlemen, When all the preliminaries had been arranged it fell to Mr. Jaffray’s lot to lead olf, which he did with a miss by both barrels, and the eon went over the hills and far away. Mr. Lorillard foliowed, and scored with his second barrel, having missed with the first. The second, third, jourth, filsh and sixth birds were all killed splendidly by Mr. Jal- fray, Mr. Lorillard missing his second and sixth birds, Then Jaitray missed and Loriilard killed, and at their seventh shot they were tied, cach having killed five. Jaffray kilied t gith bird, but afterwards lost five birds in suc ion, nearly all of which fell out of bounds, Wh twelve pigeons bad been shot at by each gentieman Mr. Loridard was three ahead, During the next eight shots Mr. Lorillard failed to score six times, Mr. | Jufiray losing birds tour times. When the latter gentieman missed at the sixteenth shot Mr, Lorillard offered to bet him $1,000 to $700 on the result, which was not taken. At the twenty-t{th shot the gentlemen were on oven terms, euch having Killed thirteem birds, They continued in this way to the twenty- ninth shot, each having failed to count three times in succession. Mr. Jattray now killed twice, while Lorillard missed his birds, and Jaffray became the favorite again, They shot away with varying suc- cess untilat the thirty-seventh score, when they were on even terms again, each having killed twenty. Mr. Jaffray missed the thirty-eighth bird, and this gave the lead to Mr. Lorillard, which he retained until the forty-third bird had been shot at, when the gentlemen were tied again. Mr. Lorillard missed the forty-fourth bird and Mr. Jaffray the forty-fifth, and they were on even terms once more, and continued so until they had each shot at their forty-eighth bird, The lookers-on were now highly excited, but the shooters were remarkably cool, Two birds more only were to be slot at to decide the match, and offers to bet were made that it would result ina tie. Mr. Jaffray led off at the forty-ninth, and hit the bird with both barrels, scattering the feathers each tine, but the bird felt out of the bounds, Mr. Lorillard was more fortu- nate, and Killed his bird, hitting him with the con. tents of both barrels. As both gentlemen killed the fiftieth bird, Mr. Lorillard was hailed the win- ner of the match by one bird. ‘The following ia THE SCORE: ‘ Mr. LORILLARD—1, 0, 1, 1, 1, 0, 1, 0, 1, 1, 1, 0, Ty 0, 1, 0, 0, 1, 0, 0, 0, 1, 1, 0, 0, 0, 0, 1, 0, 0, 1, 1, y y 1, 1,'1, 1.—Kiliedy , 0, 1, 1, 1, J, 0, 0, 1, Vy % 0, 283 missed, 22, ir, JAFFRAY—0, 1, 1, 1, 1, 1, 0, 1, 0, 0, 0, 0, 0,1, 0, 6, 0, 1, 1, 1, 0, '1,'1,'1, 0, 0, 0, '1,'1,'1, 0, 1, 1, 8 0, 1, 0, 0, 0, 0, 1, 0, 1, 1, 0, 1,2, 1, 0, illed; ah; missed 23, THE SECOND MATCH, This was at fifteen birds each, for $500 a side,’ thirty-five yards rise, the other conditions as before. Mr, Jaffray again led off, killing the bird very quickly, Mr. Lorillard following suit. Thew then both missed twice, killed twice and then missed again, keeping even up to this point. Them Mr. Jaffray killed the seventh, eighth, ninth and tenth birds, while Mr. Lorillard lost three in suc- cession, and Jaffray led by three birds at the tent score, After that Mr. Jaffray lost his birds four times in succession, and Mr, Lorillard killing every one won this match, ag he had done the previous one, by one bird. The following 13 Mr, Lot 1,'0, 0, 1y 170, 0, 0, 0, 1,1,11,1 T, LORILLARD—1, 0, 0, 1, 1,0, 0, 0, 0, 1,1, 11, 1.—Killed, 9; missed, 6. ig Mr. JaFFRAY—I, 0, 0, 1, 1, 0, 1, 1, 1, 1,0, 0, 0, 0, 1.—Killed, 8; missed, 7. The above gentlemen will shoot a match on Thursday next at forty yards rise. ALLEGE OFFICIAL OUTRAGE. eine na Newark’s Chief of Police in Scrious Trouble—He Avoids Arrest by Surrens dering and Gives Bail—A Sait Against Him for $10,000 for Abuse of Authority, Having heard that a warant had been issued for his arrest on acriminal charge preferred by Mr. James O. Watkins, Chief of Police Glasby, of News ark, yesterday forenoon surrendered himself ant gave bail in $500 to answer any complaint tha Grand Jury might prefer. Detective Andrew Jv McManus wentthrough the same form, being con- jointly charged with Glasby by Watson of havin, alded in kidnapping him on the night of the 7th o November, From the affylavit made by Watson before Justice Dean, one of the Newark Justices of the Peace, ttappears that on the nigitt in question, between nine and ten o'clock, while he was walk- ing along Broad street, opposite the Park House, he was suddenly POUNCED UPON BY FOUR OR FIVE MEN, seized and an eifort made to handcuffhin, They succeeded in getting one hand secured only, te soon perceived that they were a gang of Sherii's officers from New York, Who seemed resoived om running him over to New York. He shouted lustily for “police,” and one or two came, and the whole! party proceeded to the statton house. Here Wat-, son appealed to the police for protection, but it) was denied, altnough he declared he was a citize! of New Jersey and had committed no crime. Thera! was @ civil suit against him, but the New Yorkers, he declared, had no proper requisition or bail: Piece. Justice Lambert, who was present, ad vised the Chlef that the man's statement was cor. rect, as he had ascertained, and warned him against allowing Watkins to be taken otf by force. Giasby paid no attention to this and Watkins wi ‘ DRAGGED TO THE DEPOT, thence conveyed to New York and lodged in Lod. low street Jallon a civil suit involving $500, 01 Tuesday last he procured bali and was liberated.} Repairing to Newark, he secured able counsel au: at once commenced suit in the civil courts 1014 $10,000 against Glasby and McManus. were served Cate 9 The case exci spread attention, as it is clear that if Watson’ story bears the scrutiny of the courts either Glasb: will be placed in a very awkward tion else th liberty of an American citizen will become a met Mockery of words. Mr. Watson algo declares hit intention to commence similar action agains BAL gS Sheri? Judson EM) John McLau hilt and John Boland, all of Sheriff Brennan's o| ‘They formed the party of alleged kidnappers, by McManua,