The New York Herald Newspaper, December 1, 1872, Page 10

x0 THE COURTS. THE COULD-ERIE SUIT. Praversing the Case of Travers---The North- westers Cornered on a Legal Corner--- Judge Fancher Opposed to Fishing for Evidence-The Order for Examination Vacated-- Opinion of the Court. Constitutionality of the New Shipping Act. —--—— The Legality of the Act Sustained—Warn- ing to Boarding House Runners—Im- portant Decision and Sentence on Anderson and Koppn. US SES CALS THE CHEVALIER BIANCO MURDER. pate Ui vat Car) Vogt Again in Court—The Habeas Corpus Sustained—The Prisoner Dis- charged on the Criminal Charge— His Arrest and Imprison- ment on a Civil Suit. AND ia The Sisters Again Brought Up--A Hitch in Securing Sufficient and Satisfac- tory Bail~Another Remand to WOODHULL CLAFLI Ludlow Street Jail. THE ROGER-DONCHUE BROOKLYN MURDER. Argument of Counsel Upon a Motion for a Stay of Proceedings—Review of the Circum- stances of the Killing—Decision To Be Rendered To-Morrow. ° BUSINESS IN THE OTHER COURTS. Summaries---Fetitions in Bank- ruptey---Decisions. m the United States Circuit Court yesterday Judge Benedict rendered a decision upholding the sonstitutionality of the new Shipping act, which has been passed by Congress for the purpose of prevent- 4mg lodging honse runners and emigrant agents frem boarding vessels before they have reached their place of nnal destination in the port of New York, The points affecting the validity of this law were fecently raised in the case of Anderson and Koppn, who bad been convicted for a violation of | the act in question. The iaw having been new pronounced valid, and the conviction of the prisoners sustained as a good one, they were each sentenced to pay a fine of $50 or go to jaii for not eas than six months, Yesterday, whert Woodhull and Clafin appeared before Commissioner Shieias to sign the bail bonds for their appearance to answer the charge agatast them of having sent an indecent and obscene pub- Mcation throngh the mati, their counsel suggested that it would be better to defer the completion of the bonds until Monday, as, if they were liberated, they would'at once be arrested by an oficer from Jeflerson Market Police Court, who was in attend- ance for that purpose. The prisoners, preferring the accommodation of Ludiow street to that of the Prison at Jefferson Market, went of to the former Place without signing the bonds. Alengthy argument was had yesterday before Judge Fancher, at Sapreme Court, Chambers, upon the motion for a stay of proceedings in the case of Henry Rogers, convicted in Kings courty of t murder of Policeman Donohue and sentenced to be hanged next Friday. The stay was asked for on the ground of alleged errors in the rulings and sharge by Judge Gilbert, before whom he was tried. The Judge promised to give his decision to- | morrow. | Carl Voght, charged with the murder of Che- | Valier de Bianco, 4 Belgian nobleman, and flecing | to this couriry with some $100,009 worth of bonds and securities which had belonged to the mur- dered man, was yesterday brought betore Jadge Fancher at Supreme Court, Chambers, on a writ of Babeas corpus. His discharge was asked for under this writ and granted. Subsequent to his release Re was, however, rearrested upon a civil suit in- stituted by the heirs of de Bianco to recover the alleged stolen property, and upon the same com- mitted to Ludiow street jail. Judge Fancher, holding Supreme Court, Cham- bers, yesterday rendered a decision vacating the erder for the examination of William Kk. Travers before a referee to be used upon the motion to be argued to-morrow betore the same Judge to vacate the order of arrest against Jay Gould, granted in the late Erie Railway suit, to recover from him some ten millions of dollars. The opinion of Judge Fancher, embodying his decision, will be found in fail below. JAY GOULD AND THE ERIE SUIT. “ epee Decision of Judge Fancher, of the Su- | preme Court, as to the Examination of Mr. Travers—The Judge Declares the Proposed Form of Examination a Fishing Expedition and Vacates the Order—His Opinion. With an alacrity unusual to our Judges, Judge Fancher, of the Supreme Court, yesterday ren- dered his decision upon the motion to vacate the order for the examination before & referee—the same as recently examined Horace PF. Clark and Augustus Scheli—of Mr. Wil- Nam RK. Travers. It will be remembered that this application was made on the ground of requiring the testimony of Mr. ‘ravers at the argument to | be heard before the same jadge on the motion to vacate the order of arrest against Jay Gould, in the so-called ten million suit recently instituted inst him by the Erie Railway Company. The | objection was not 80 much to the examination but | ww the form of it, the desire on the part of Mr. Gould’s counse) being to put him through 4 sea: ing examination npon the subject of the rec corner in Northwestern, upon the claim that the facts sought to be gained had an important bearing apon the sult, and the opposition to this being that this was an unnecessary inquiry into Mr. Trav- ers’ private affairs and that all that was necessary, which Mr. Travers was willing to do, was lor him lo answer written interrogatories, and draw up an | affidavit from the questions and answers. The Judge, it will be seen, denied the motion. We give in sul!'helow his opinion embodying the grounds of | ‘bis decision :— | OPINION OF JUDGE FANCHER. The seventh subdivision of section 401 of the code provides that “when any party intends to make or M duis @ motion in any court of record, and it shall be necessary for him to have the afi- davit of any person who shall have refused to make the same, such court may, by order, appoint a feleree to take the affidavit or deposition of such person.” This section further provides that he “may be subpoenaed and compelied fo attend ‘and make an affidavit be- fore such referee, the same as before @ ref eree to whom itis referred to try an issue.” When es 18 made under this sub-division of sec- tion 401, for an order the paper on which It is ap- plied for should show that the party making the application intends to make or oppose @ motion, 80 that it in necessary for such purpose for bint te have the affidavit of some person whom he WEW YORK HERALD, SUNDAY, DKUEMBER 1,'1872—QUADRUPLI) SHEET. fased to make the affidavit, It is manifest that the party to the actibn who makes application sbowd know or be advised t WEAT SORT OF AN APPIDANTS, is necessary, and that itcan be made by the per- son he names; and it is also apparent that heiore such person can refuse to it the same should be drawn and presented to him, with a request that he should sign and swear to it, un- less, on doing meer he refuses to make any afiidavit at To say that | the statute is so far reaching as to allow the referee to treat the order appoint- ing him as a commission to compel the person whose aMidavit is sought to submit to a general ex- amination touching the affairs in controversy in the action, is to lose sight of the purpose as well as the language of the statute, Had the law mak- ers intended to alle such an examination their language would have been different from that of this section, and the plain meaning would have re- vealed such an intention. The PURPOSE OF THE LAW is not to compel such an examination, It is true that when the person whose aftidavit is sought at- tends before the referee, and is informed of the particular matter as to which he is requested to | make a deposition, there is no objection to the form of proceeding, and the statements may be taken down and sworn to in the form of a parra- tive deposition or of questions and answers; but as the proceeding is not an ordinary exam- imation of a witness, and as no cross- examination is not permissable, it does not seem proper that any of the parties to the action should go into a general examination before the re- fJeree, and thus be permitted to procure ex parte testimony freed from the tests and explanations of a cross-examination, He is not there for such purpose, but only to obtain an affidavit to be used on @ motion, and the afiidavit sheald pe limited to the subject of the motion, The rapid stride ot code amendments has not yet reached the point of allowing an unrestricted examination at such a Stage in the action por opened so wide the oppor- tunity for A FISHING EXPEDITION, Making the aftidavit provided for in the section under consideration is not an examination. Where an examination takes place, either before trial or at the trial, the counsel for both parties are pres- ent and the rules of examination are applied. This is not the case when an _ amdavit is sought for the purpose of a motion. If the party | sesking the affidavit for a motion does not tully | know all the facts to be emboried in it, and the person to be examined offers to receive and answer written questions and answers as was | offered in this case, it is all that can reasonably be required, and such a method of stating the facts in the affidavit is, as it seems to me, eninently pro- per. The statute says that such person “may be subpoenaed and compelled to atvend and make an afidayit before such referee.’ It does not say that he shall submit to an examination as a wit- ness. An examination de bene esse is provided for by the revised statutes, when from infirmity or sickness, or contemplated absence from the State, there are reasonable grounds to apprehend the witness will not be able to attend the trial, ‘The CODE OF PROCEDURE has also made provision for the examination of a party to the action, and it may be at the option of the party claiming it at the trial or at anv time be- tore the trial, atter issue is joined, There are also statutory provisions for perpetuating and for taking commission testimony in certain cases; but none of the conditional examinations are ex parte, ‘They are made on notice which is usually pre- scribed by the order when obtained, and in con- ducting them the rules of evidence and the right of cross examination are observ T cannot | think the seventh sub-division of section 401 of the Code, which is fo the chapter entitled “Mo- tions and Orders,”’ and in the sect.on entitled | ‘Definition of a Motion, Motions, How and When Made,” was intended to allow an ex parie exami- nation of a witness; on the contrary, it was in- tended to give the right to a party to'an action to require an afiidavit or deposition, which is shown | to be necessary to make or oppose a motion, and when it has been refused by the person wio should ma it the party cannot | show that the afidavit is necessary, unless he has | some knowledge or reliable information of what it might properly contain, I do not think tt has been such a refusal in this case and thereto the order appointing a referee to take the affidavit of W. R. Travers should be vacated, If there should be a reiusal to make an affidavit hereatter, or Mr. Travers declines to answer the questions | which the defendant’s counsel may submit in writing, or to sign and swear to the affidavit to be drawn up from such questions and answers, 9 order to appoint a referee to take the aitidavit be applied for and would b roper. The motion to vacate the order is granted, with liberty to make a further application if necessary. CONSTITUTIONALITY OF THE NEW SHIPPING LAW. The Case of Anderson and* Koppu, the Boarding-House Runners—They are Sentenced to Pay a Fine of $50 Each or Go to Jaib for Six Months—They Get Ten Days to Find Bail—Important Decision, In the month of September last two men, named Anderson and Koppn, were tried in the United States Circuit Court, before Judge Benedict, under an indictment charging them with having, con- trary to the sixty-second section of the new Ship- ping law, boarded a foreign vessel in the harbor of New York, without the permission of the master and before she had arrived at her place of finai destination. The prisoners were found gui!ty. Un the trial certain questions arose with respect to the constitutionality of the law, and also in re- gard to the rulings of the Judge. On yesterday week these points were argued before the Judge, Mr. Robert Andrews appearing for the prisoners and General Davies for the government. Yesterday Judge Benedict rendered his decision on | the points raised, and it is as follows :— DECISION, Upon the trial of the defen meut for the often ants upon an indict- of boarding a vessel without the perinission of the master, in violation of the ng actof June 7, 1872, it was ruled, unaer objection tn behalf of ‘the defence, as follows, to First—That the enactment contained in the six- ty-second section of the act, under which tie in- dictment is framed, is a vaiid ena nt within | the scope of the powers granted by the Constitu- | ton of the United States, Second—The section in question creates a crini- nal offence against tie United States, punishable | t ans of an indictment and conviction in a ceeding, and upon such conviction, by reason of the effect of the language of the ‘62d lous taken together, @ penalty not ceeding $200 is to be imposed by the Court, and offender may be imprisoned until the payment thereof, not exceeding six months. nird—It is unnecessary for the government in such a prosecution to prove that the prisoner was notin the United States service, or was not duly autho i by law to go on board the vessel, Fourth—The proof that the prisoners were run- ners by a person who held a license to keep a sailors’ boarding house, under the statute of the State of New York, passed March 21, 1866, did not snow the prisoner to be exempt from the’ prohibi- tion of the section in question. Fifth—The prisoners by climbing from a boat upon the rail of the ship in the act of entering the ship, without permission given, rendered tnem- selves liable to punishment as provided in the sixty-second section, Sicth—Proof that the master of the ship was not on board the vessel, and that the mate then in command gave no perimission to the defendants to board the vessel and caused their arrest on the Spot Was suilicient to support a conviction in the absence of any evidence showing a permission by the master. Seventh—The offence is committed by boarding in the Bay of New York, without permission, an ju- ward bound vessel, laden with cargo to be landed at a pier in New York city, before the arrival of the vessel at such pier, although 1t appears that at the time of the boarding the vessel was temporarily at anchor in the Lower Bay. Eighth—Considering the general language of section 62, and in view of the evil sought to be remedied thereby and of the nature of the prohi- bition therein contained, the section is to be consid- ered as intended to protect foreign vessels as well as vessels of the United States, and the fact that the vessel boarded by the prisoners was a foreign vessel is, therefore, of no avail as a defence in @ prosecution under this section. These several rulings I have re-ex- amined in the light of the argument which has been had in respect of them, and I am satisfied of their correctness. The statute in question being new, and its language in many instances inartistic and obscure, I have thought proper to submit the Pale raised to the consideration of the Circuit udge, and he concurs with me in the opinion that the rulings stated are correct. There must, there- fore, be judgment upon the verdict, Mr. Robert Andrews, counsel ‘for the prisoners, submitted that, as the prisoners were poor and unlettered men and not supposed to be aware of the law, the Court wonld satisfy the enda of justice by imposing a light sentence, General Davies, United States Assistant District Attorney, taen moved for sentence, but did not op- pose the suggestion offered by counsel for pris- oners, Judge Benedict then sentenced Koppn and An- derson to pay a fine of $50 each or be imprisoned | hot longer than six months, They were, however, ; released and allowed ten days to find bail. THE MURDERED BELGIAN NOBLE- MAN. cnannfpeislanmaise | Proceedings in the Supreme Coust, Cham- bers, Upon a Writ of Habeas Corpus— Carl Voght Saved from the Guillo- tine Throu m Order of Discharge Granted by Judge Fancher—Sabse- quent Arrest and Commitment Upon a Civil Suit Brought by the Heirs of the Murdered Nobleman. The case of Cari Voght, the alleged murderer of | should ame. and aio that such person bag re- Cheyaier Bianco, the Belgian gobleman, came up | | discharged Jarceny ? yesterday in the Supreme Conrt, Chambers, before. Judge Fancher, Voght, in the custody of a keeper of the City Prison, was produced before the Court in ovedience to a writ of habeas corpus granted a few days since. As this is a somewhat remarkable case a brief STATEMENT OF THE FACTS will not be out of place.’ ‘The alleged murder and robbery occurred on the Ist of October, 1871, at Brussels, inthe Kingdom of Belgium, and the victim was one Chevalier du Bois de Bianco, a rich nobleman. Carl Voght was a gardener in the em- ploy of the Baron, who lived in his chateau near Brussels. On the morning of the 2d day of October the Baron was found dead in his bed, bis chateau on fire, and a large amount of personal property, consisting of bonds, money and jewelry were missing. Voght was also missing. He was suspected, tracked, and it was found that he had set sail for America, having left bis wife and chil- dren and run away With another woman. He was traced to New York, trom here to Philadelphia, in which city he was arrested, and in his p ion, as well a8 in the possession of @ number of bankers, was found a large quantity of the stolen bonds, the bankers having received the bonds trom Voght for collection, Voght was brought on to New York, and Governor Hoi n issued his warrant commanding the Sherif to dehver him over to the Belgian uuthorities, in order that he might be taken to Brussels and tried, There being no treaty between the gph government and the Kingdom of 3elgium the counsel for Voght applied for a writ of habeas corpus, which was peantes by Judge Curtis, of the Superior Court, who, aiter pearing the argument of counsel for the accused, decide the law unconstitutional, .hokling that no State could have foreign {ntercourse, and to the general government belonged solely and exclusively the right. to extradite, and ordered the discharge of the accused, From this decision the Attorney General of the State appealed to the Court of Av- peals, which Court sustained the decision of the Rourt below—holding the warrant of Governor Hoffman illegal and in violation ot the constitution, Upon the return yesterday to the WRIT OF HABEAS CORPUS Attorney General F. C. Barlow and A. 8, Sulii- van, Assistant District Attorney, appeared on be- half of the people, while the prisoner was repre- sented by Messrs. William F, Kintzing and Charles M. Marsh, The Belgian government was repre- sented by Messrs. F. ©. Coudert Brothers. Counsel for the prisoner stated to the Court that the accused been in custody ever since the beginning of April last; that upon the 24th day of April an indictment had been found against him for larceny, in stealing certain bonds and bringing them into this country and into this State; but upon this indictment he had never been oifered the opportunity of a trial, aithough for the last seven months he has tried, but tried in vain, to geta trial, He insisted that upon the Governor's warrant Voght stood discharged by the action of the Court of agar upon the larceny. He there- fore askea his discharge from the indictment found against him. Mr. Sullivan briefly reviewed the facts of the case and pronounced the killing of Chevalier du Bois de Bianco one of the most atrocious murders on record. The prisoner, he went on to say, now stood in Court with his hands red with blood and his garments crimsoned, Of this crime he goes unwhipped of justice, as he cannot be sent back to Brussels, where the crime was committed, in con- sequence of there being no treaty between Belgium and the United States, Shalt he be now for the iesser offence of There was, he said, a law upon our statute book which says that any person who shall steal in a foreign country and bring such property into this State shall be guilty of larceny. For this offence Voght stood indicted by the Grand Jury, ‘The reason why he had not been brought to trial upon this indictment was because the authoritles hoped, the Court of Appeals would reverse the action of the Court below, and then he would be sent back to the country whose laws he had vio- lated. Ever since the decision of the Court of Ap- peals the authorities had made every effort to get these witnesses from Brussels, but he must coniess so lar he had failed, and he could not say when they could be obtained. r. Kintzing said that after this statement cer- tainly the prisoner was entitled to his discharge, as no citizen, however humble or guilty, can be detained in prison for an indefinite period. ACTION OF JUDGE FANCHER, Judge Fancher said that he agreed with counsel, and that, however it was to be regretted that the ends of justice should be defeated, still he had but one duty to perform under the circumstances—ihut was, to discharge the prisoner, SUBSEQUENT PROCEEDINGS. The writ was handed up to the Judge, and he endorsed his decision on the back of the writ. Voght who, meantime had occupied a seat in the back part of the court room, and by the side of whom was the young woman who has singularly clung to him during his long incarceration, im- mediately upon the news being communicated to him by the interpreter of the Court, jumped up and seizing the hand of his counsel, imprinted upon it several kisses, and thanked him for what he had done in his behalf. THE HEIRS AFTER THE STOLEN PROPERTY. After the prisoner lett tue Court he was taken into custody under a civil order of arrest, issued a few days ago at the instance of the heirs of the murdered chevaiier, who will endeavor to recover some of the stolen property back, it being said that the prisoner took away with him over one hundred thousand dollars’ Worth of property. He was conveyed by the Sheriifin a carrage to Ludiow Street Jail, where he wilt doubtless remain during further legal delays before trial, THE WOODHULL- CLAFLIN CASE, The Sisters Still Coafined—A Hitch in Securing Sufficient Bail—Another Ar- rest Anticlpated—George Francis Train Sees Them to Their Ludiow Sireet * Quarters. As stated in the HERALD of yesterday, bail had been tendered in the United States Court, before Commissioner Shields, for the liberation of the trail and erring sisters, Woodhull and Clafiin, from Lud- low street jail, where they are at present locked up on acharge of sending an obscene, vulgar and im- moral publication through the mail. They are actually under indictment for this offence. ‘the bondsmen who have declared their willingness to effect their liberation are Mr. James Klernan, No. 3 Jay street, Brooklyn, and Dr, Augustus D, Ruggles, of 95 Monroe street, of the same city. Yesterday the prisoners came down in a carriage from the prison to the office of Commis- sioner Shields, where a large crowd was assembled to take alcok at the extraordinary pair who, accord- ing to the terms of the indictment, have permitted themselves to belong to the stercoraceous school of literature, Among those present was George Francis Train, swatiow tail coat, mauve kids, brass buttons ard all, and he appeared to be one of the very few men who took the slightest interest in or feit any sympathy for the fair delinquents. Tue District Attorney said he was willing to accept the bail that had been offered on the part of the prisoners, Commissioner Shields said he was ready to re- ceive the signatures of the prisoners to the bail ponds for the purpose of completing them. Counsel for the prisoners suggested that they should defer doing so until Monday, as he under- stood there was an officer from Jefferson Market Police Court in attendance prepared to arrest them if they should be discharged now. Mrs. Woodhull made aneifort to speak, and had uttered a few words to the effect that they had now been locked up in jail for four weeks on a charge that could not be sustained, when Commissioner Shields saia that she had come there merely for the "ad ae of giving bail, and, therefore, he did not desire to hear anything about the case. If they were ready to sign the bail bonds he was prepared to have them perfected at once. Counsel for the prisioners asked that the Deputy fae should drive to Jeflerson Market to give vail. Mr. Kennedy, Chief Deputy from the office of Marshal Sharpe, stated that he could not accede to this request, ‘The prisoners then left the court room and were driven back to jail in cones, of Deputy Marshal Penniman, George Francis Train occupying a seat in the carriage with them. Counsel for the prisoners was understood to say that bis clients liked Ludlow Street, so far as the accommodation went, but they could not stand the prison at Jefferson Market. In order to get out of jail the wayward sisters will have to furnish $30,000 bail—$8,000 each on the charge in this Court, $5,000 in the Supren Court suit and $2,000 or $3,000 in the suit in Jette son Market Police Court. ROGERS, THE CONVICTED MUR- DERER, . - Argument Upon the Motion for a Stay of Proceedings—A Decision To Be Given ‘To-Morrow. Pursuant to his argument of the day previous Judge Fancher, holding Supreme Court Chambers, yesterday listened for several hours to the argu- ment of counsel upon the application fora stay of proceedings in the case of Henry Rogers; recently convicted of the murder of OMcer Donohue, of the Brooklyn police, before Judge Gilbert, of Kings county, and sentenced to be hanged on Friday of this week. Mr. C. 8, Spencer, who appeared on behalf of the condemned man, insisted that Judge Gilbert erred in charging, with reference to the intent of the Legislature, as to the testimony of prisoners; that he also erred in drawing a distinction between the testimony of prisoners on their own behalf and that of other witnesses, and that it wasa@ forther error in pronouncing the murder au atrocious ope, which was @ watter of mere judicial opinion, not for him but for the jury to pean’ He also insisted that it was an error charging thas the and for prancing the of oe t asked for, Mr. Britton, Dist Atl ey of ge conn in ~ light. He eee, eee the. Madge in ent le all his rulings and in i charge, and as to the evi- dence he c! th is showed @ clear and un- mistakable case of deliberate marder. He was earnest in his ‘otestations against granting any stay proceedings, — and claimed that only the proper justice had been meted out to rs, and that he should pay the extreme penaity of his crime, Mr. Edwin G. Davis, who defended Rogers at his trial, submitted a lengthy brief on the various law points involved in the case. Judge Fancher, after hearing the ments, took the papers, promising to give his decision to- morrow, BUSINESS IN THE OTHER COURTS. comatose UNITED STATES DISTRICT COURT—IN BANKRUPTCY. Voluntary Petition. John 8. H. Clark. Voluntary and Involuntary. George W. Wundrum and Jonn Grimith. Adjud@ications in Involuntary Cases. Thomas Kiernan, James W. Macaulay, William Rynahan, William P. Hearn, ‘Thomas D. Macguire, Peter W. Husted, Thomas Oxnaid, John B. Bros- seau, Marinus G. Coughlan, Edwin Church, Thomas C, Goetchius and Almon Miller. Discharges. Lewis Dell, Elijah €, Schanck and Aaron C, Schanck, SUPREME. COU’}T--CHAMBERS. Decisio: By Judge Fancher. The People, &., of the State of New York ex rel James L, Crosby and Andrew H. Green, &c.—There has not been any Part 3 of the Circuit in New York during the period for which the relator claims pay, naa eeernnire no ground fora mandamus. Motion len! I. Chappell et al. vs, Chappell et al.—Report con- firmed and judgment granted, SUPERIOR COURT—GENERAL TERM. Decisions. By Judges Freedman and Curtis. Emily F, Ford vs. August Belmont.—The judg- ment appealed from aftirmed with costs. ‘Thomas Hamilton vs. Third Avenue Railroad Com- pany.—Judgment and order aflirmed with costs, Henry Wisser vs. James O’Brien.—Judgment re- versed and new trial ordered, with costs to appel- lant, to abide the event. The New York and Harlem Railroad Company vs, Bee and Peter Mullady.—Reargument orderet By Judges Babrour, Monell and Freedman. Gilbert G. Van Pelt vs. The United States Metallic Spring Boot and Shoe eel Company.—Order re- versed, with costs, with leave to defendant to goed the demurrer and to answer on payment of costs, George Mitchell vs. Charles W. West.—Judgment and order aitirmed, with costs. Montgomery Queen vs, ‘he Second Avenue Rail- Toad Company.—Judgment atlirmed, with costa, a Rin Ue Moncll, Curtis ané Sedgwick, ‘The Merchants’ National Bank of Memphis vs. Abraham Cardozo.—New trial ordered, with costs to the appellant to abide event. Grenville P. Clapp vs. John E. Devlin.—Judgment set aside and new trial ordered, with costs to the appellant to abide the event, john ‘I, Howard vs. Isaac T. Smith.—The judg- ment and order appealed from affirmed, with costs to abide event, By Judges Barbour, Freedman and Sedgwick. Charles B. Hoffman vs. Allred L. Seaton.—judg- ment ailirmed, with costs. MARINE COURT—SPECIAL TERM AND CHAMBERS, Decisions, By Judge Tracy. Fannie Emmoertz vs. G. J, Donnelly.—Motion granted, Kdwin HM. Gibbs vs. Joun Bechtel.—Under the Les 1872 this action 18 within the jurisdiction of jourt. John D. Underhill vs. Alexander Campbell.—Mo- tion granted, John Behrens vs. B. Zimmermann,—Motion for judgment on the answer 4s frivolous denied, Cause set down for trial on the second Monday in December, 1872, JEFFERSON MANKET POLICE COURT. The Raid on the Policy Dealers. The following named policy dealers were yester- day brought up before the Jeiterson Market Police Court and held to bail in the sum of $300 each to answer:—Willlam St. Jonn, of Thompson street; John B, Hoogs, of Wooster street; John Curtis, of Thompson street, Youthful Burgiars. George Carver, @ colored boy, aged ninetcen, was brought up charged with. making forcible and felonious entrance into the premises 47 Thompson street, kept by John Lubben, at an early hour on the morning of the 29th uit., and stealing therefrom goods and money to the value of $40. He was ob- served in the store with an accomplice by OMcer Wandling, ot the Eighth precinct, but succeeded in making his escape, and was afterwards arrested, He was committed in default of $1,500 bail to BNSWET. pee Burglars Captured. The premises 582 Houston street, occupied by Michael Welsh, as a tin and hardware store, were burglariously entered on the night of Tuesday last and a quantity of smoothing trons and other property to the value of $20 taken. Morris Ken- nedy and James Geoghan, aged respectively eigh- teen and nineteen, members of the Mott street gang, were subsequently arrested,and a portion of the goods found in their possession. Com- mitted to answer in delauit of $1,600 bail, Seeking Shelter from the Cold. Edward Bond, a young gentleman in the last depths of shabbiness, finding himself without pro- tection against the present inclement weather, deliberately broke the show window of store 84 Bleecker street, kept me Leopold Finisterer, with a view of being arrested and locked He was accommodated, and yesterday, at the Jefferson Market, he was committed in default of $600 to an- swer at the Special Sessions, BROOKLYN COURTS, SUPREME COURT—SPECIAL TERM. The Will of the Late John Kellam De- clared Valid. Before Judge Pratt. Yesterday Judge Calvin E. Pratt rendered a de- cision declaring the validity of the will of the late John Kellum, the distinguished architect. De- ceased, who died in the Fall of 1871, at Hempstead, L. L, made a will in 1860 disposing of property to the amount of $2,500,000. In due time the will was admitted to probate by the Queens County Surrogate’s Court, and under its provisions the widow, Mrs. John Kellum, became sole execu- trix, Some time after this application was made by Hiram Kellum, one of the sons of deceased, to have the will re-probated under the statute, on the argument that it was not the final will and testa- meut of his father, as it had never been duly executed and signed by the testator in the pres- ence of witnesses. Motion to open the probate was made before the paged of Queens county, but it was denied. The will then went to the General Term, where it was sustained as valid. Yhe Court of Appeals, however, reversed the decision and the case was sent back to the Surrogate. Subsequently Mr. Hiram Kellum commenced suits of ejectment in the Supreme Court to recover real estate, and the questions involved being the same as those raised on the peepee of will Judge Pratt decided as above set forth. COURT OF SESSIONS. Arraignment of Prisoners. Before Judge Moore and Associate Justices. The following named prisoners, indicted by the Grand Jury, were arraigned yesterday and the day of trial designated :— August Wolfing, attempt vo commit a rape, pleaded not guilty; trial December 4, dames Monahan, double voting; pleaded not guilty; trial December 5, Charles L, Tiemann, manslaughter, pleaded net rwilty. c Edward Weber, grand larceny, pleaded not guilty; trial December 15. Mary A. Brown and Mary S. Ritch, assault and battery, pleaded not guilty ; trial December 18, ‘Thomas Thompson, attempt to rescue a prisoner, pleaded not guilty; trial December 19. Patrick Gavin, Hugh Gavin, John Gavin, assault and battery, with intent to kill, pleaded not guilty; trial December 18, A. J. Farrell, assault and battery, with intent to do bodily harm, pleaded not guilty ; trial December Mw Alexander Hyman, forcible rescue, pleaded not guilty; trial December 17. Stephen Martin and Dennis Culler, assault and battery, Year not guilty; trial December 16, Conrad Kliensmith, petty larceny, pieaded not ony A 16, vonrad Eckert, petty larceny, pleaded not guilty; trial December 16, if id sae Michael J. Bergen, assault and battery, with in- tent to 9 leaded not guilty; trial December 16. Charles Schneff, assault and battery, pleaded not goailty; trial December 17. Mathew Stapicton, manslaughter, pleaded not guilty; trial December 17, James Bond, Thowas Vonvery, James Scott and pear yer ve gy pein 9) ; mber 16. "Toni etd eee and buttery, pleaded not guilty; cember 18, Daniel Louergan, seduction, pleaded not guilty; trial December 19. COUNTY SURROGATE'S COURT. * Before William D, Veeder, Surrogate. ‘The wills of the following named persons were Proved during the past week:—John F. Clen, of Philadelphia, Pa.; Thomas Stamp, of Flatbush; Henry Allmand, John F. Wrede, John R. Grice, Susan N. Nichols, James F. Curtis and Margaret D. Moore, all of Brooklyn. Letters of administration were granted in the estates of Clarissa R. Howard, Edward M. Brady, Maria Rudolph, Peter H. Ta’ Lena Sudenburg, James Si t. Bhebe Clark, John 5. Woodruf and b. Arhens, ail of Brooklyn. Letters of guardianship were granted to Harriet C, Taws and Albert Cromwell, of Brooklyn. COURT CALENDAR FOR DECEMBER. ‘This week Justice Tappen will sit at Circuit, in the Supreme Court, and Justice Gilbert will transact Spectal Term business. On Monday, December 9, Justices Barnard, Gilbert and Tappen will hold @ General Term of the Supreme foarte and Justice Pratt will preside at Oyer and Terminer, when the Irish-Anderson case is to to tried, A panel of 360 Jurors has’been sum- moned for the occasion. ‘There are 420 cases on the December calendar of the City Court, and there will be three weeks of jury trials next month. Judge Neilson will nold Part 1, Jadge McCue Part - and Judge Thompson will dispose of the Special erm business, » THE JUMEL ESTATE. The Case of George Washington Bowen Against Nelson Chase—The Empanel- Mng ofa Special Jury to Try the Cause— A Review of Precedents for It—The Duty of Citizens as Jurors. Very many statements concerning the long-liti- gated Jumel will case and its congener litigations have appeared from time to time in the public press, almost all of which have distorted the real facts of the case as they properly belong to the present litigation between the abovenamed Plantif? and defendant. ‘The most appropriate manner of refuting those which relate to the merits of the pending controversy is by the evidence of witnesses on the trial. The opportu- nity for this refutation is at hand. But it may be Proper now to state certain facts which have @ general interest, and which, as they do not affect the merits, cannot be subjects of inquiry on the trial. The defendant, Mr. Chase, moved for a special Jury, and the Court, after hearing an afidavit and an argument 07 counse) for the plaintiff in opposi- tion, granted the motion, The press nas been misled in stating that the special jury thus ordered is understood to be “the first ever empanelled in this country.” If would be strange indeed if this were so. The utility of spe- cial or struck juries is apparent to all who under- stand the principle on which they afe allowed, and ona fair statement of that principle will be con- ceded by every unprejudiced person, There is no lack of precedents, For instance :— In the early English practice it was the usage to order all cases of importance to be tried at bar be- fore the whole Court. A special jury was an inva- riable incident of such trial at bar. When impor- tant cases became too numerous to be tried at bar it was donbted whether a special jury conld be ordered at the single-jndge Court commonly calied nisi prius, or the assizes. Stat- utes were therefore passea to remove this doubt and to place the specia! jury system on a perma- nent basis. With slight variations of no moment except m reference to expenses, it remains upon that footing in England until the present day. On consenting to defray the extra expense either party can have a special jury as a matter of strict right. The New York statutes, trom the earhest period, contained full and precise directions for special juries. They may be found in the last re- vision, 3 R. 8., 716, fifth edition. ‘The only substantial disference between the New York and English statutory systems is that in our Courts a party cannot insist npon a special jury; he must pi for it, and the Court may grant or refuse it, according to its view of the circum. stances. ‘The State law in this respect governs in the United States Courts, ‘The special jury is formed in the following man- ner:—An officer of the Court selects forty-eight persons whom he deems “most indifferent between the parties and best qualified to try the case.’ ‘The parties aiternately strike out one until each has stricken out twelve, and the jurors to try the case are drawn by ballot from the remaining twenty-four. The advantages are apparent. Fitness and ca- pacity are attained in respect to the whole forty- eight. The presence of any biased or prejudiced erson upon the jury is almost certainly prevented by the absolute right of each party to reject per- emptorily one-fourth of the whole panel. All the defects of common juries which any human care or prevision could correct have been obviated by this system. It was established in the very infancy of jurisprudence, and has been approved in every age down to the present, Special juries are not olten asked for in this country; but they are well known to the profession. Many trials have been had in our City Hall before special juries. The noted Ssaten Island case of Windle, Executor, vs. St. Andrew's Church, in- volving pecuniarily only $250 and interest, was tried nine times ineffectually before common juries; but a tenth trial, by a special jury, beiore Chief Justice Ruggles, terminated the vexation. The quo warranto against Azartah ©. Flagg, brought to test his election to the New York Comptrotlership, was tried Py @ special jury before Judge Emott. Samuel J, Tilden presented in his opening speech for Mr. Flagg a set of figures wiich were fatal to the prosecution. Through the enlightened judgment of a special jury he utterly demolished an ingeniously prepared case, Other precedents might be adduced, but let these suflice. The entiemen who may be summoned as a special bei Might be induced from reading a late article likely to occupy too much of their valuabie time. The only illeitect of this would be to embarrass with delays - party in the case who seeks a prompt and a fair trial. It is, however, by no means certain that the case will occupy as much time as pred d,and it is certainly the duty of every good honorable citizen who has a stake in the pure administration of justice to endure, if neediul, some personal inconvenience for the pur- pose of preserving it, JAMES C. CARTER, 66 Wall street. NOVEMBER 29, 187: HORSE NOTES. sbi ‘The sale of M. Roden’s horses came off yesterday morning at the stables 571 and 573 Seventh avenne, Major ©. W. Barker, auctioneer. The following is alist of the horses sold, together with the prices paid and the purchasers :— Black gelding, 151s hands high, six years old, red by General Knox, half brother to Camors; and said to be able to trot in 2:35; sold for $925 to T. Kendrie. Bay gelding, 15's hands high, eight years old, dd by Ethan Allen; said to be able to trot in 2:40, and represented to be one of the best pole horses in this city; sold for $600 to James Irving. Sorrel gelding, 15'; hands high, six years old, stred by Young Morrill; said to have trotted in 2:45; sold for $290 to D, Young. Gray gelding, 15%, six years ola, bred in Ken- tucky; said to be capable of trotting im 2:50, or. bet- ter. ere was no bid for this horse. Sorrel gelding, 153;, ten years old; has trotted in 2:34, and can show a 2:40 gait to a road wagon; sold for $280 to Ed. Brown. Bay Morgan mare, 15 hands high; said to be able to trot in three minutes; sold to James McKee for 00. Sorrel thoroughbred horse, 15%, bred in Ken- tucky, represented to be one of the finest saddle horses in the city, and broken to barness, six years old, was sold for $162 50 to Mr. Van Tassel. The bay mare Kate Johnson, by Volunteer, 151¢ hands high, five years old, was sold for $206 to Mr. nikee. Bay gelding by Ethan Allen, 1544 hands high, six years old, said tobe able to beat three minutes, ‘Was sold for $215 to Mr. Barton. The bay mare Countess, six years old, by Superb, dam by Harris’ Hambletonian, was bought in for 1,500. PIGEON SHOOTING. Bogardus, the champion pigeon shot of America, says be ig prepared to shoot a match with Ira Paine, Ed Tinker, Abraham Kleinman, James Ward or any man in Roe shee 100 single birds, ground traps, twenty-five or thirty Pg fall, one ounce of sho rom $500 to $2,! @ side. each party to find birds and trap and to handle for each other, Re match to take place six weeks from signing a CB. A CHUROH BURNED DOWN IN NEW JERSEY. Late on Friday night, just before midnight, a venerable stone edifice, the Presbyterian church, built in 1798, in Caldwell township, Essex county, N. J., was destroyed by fire. The loss is estimated at about fifteen thousand dollars. The venerable pile was erected, after a hard struggle, by the early Sonate 4 Caawed, and yeens Tender fs f| 4 county. On anew a some will soon be commenced, a8 the congregation is ROW quite prosperous, m one of the daily papers to shun the task, as | WINTER FASHIONS. What the Cold Weather Has Brought Forth. VARIOUS STYLES IN FURS, The Redingote for Street Wear-~ The Dolman. Ever since the first cold blast from Boreas pres sented an excuse for their use, furs have been worn moré generally than at any season before; and now that “the Winter winds are wearily sighing’ and we have “the Winter snow,’ albeit not quite “knee-deep,” they are decidedly at @ premium. Our old friend, the dis- tingué sealskin jacket, is, if possible, & greater favorite than ever, and comes to us in a new style, known as the “Lucca”—a handsomely shaped, half-fitting, double-breasted sacque; also as the “Opera’’—a loose, doubie-breasted sacque, slashed at the sides and in the pack—a great im- provement on the very short, too close ones of last season. With these young ladies wear the new style sealskin turban, cut alter an Improved shape, so ags..to fit more. com- fortably over the coifure, This will hardly be a recommendation, however, if the coifure con- tinues to grow higher and “beautifully less,” as it has been doing for some time past, for the symp- toms at present are that there will soon be no coifure “to speak of? for one to fit over. The sealskin sets, consisting of boa and muff, are also very fashionable, but are most appropriately worn wiih cloth costumes. Perhaps the MOST POPULAR OF ALL FURS worn this season is the black marten, variously known as Alaska sable, black sable and stone-mar- ten. It 18 comparatively inexpensive, and at the same time very rich and dressy in effect; and it ig now so scientifically prepared and cured that there is no possible danger of a betrayal of its question- able origin, even though it be worn in the warmest room. The very newest of the expensive furs are the black and silver fox. The hair on both is long, as fleecy and fluffy as marabou and as soft to the touch as Russian sable. The black fox, sometimes called , blue, is neither blue nor black, but a peculiar tint, a rich dark gray; but the silver fox is more appro- priately named, and is of a beautiful silver gray color, Both of these furs are more used in bands of various widths for trimming than for independ- ent sets, and the use of them for this purpose ne- cessitates a sct of the same fur to be worn with the suit. IN FITTED GARMENTS FOR STREET WEAR the redingote is decidedly the favorite. The leat ing style is Known as the “Netison,” perfectiy loose in front, with the back fitted in and held in position by a belt underneath,. and less bougant than formerly, very fre+ quently only looped at the sides, It is worn belted or not, most frequently falling perfectly loosa in front, and is made up indiscriminately in velvet cloth or the fashionable camels’ hair cloth. Fashionable, but undeniably ugly in appearance and effect, the camels’ hair cloth really gives some ground for the surmise recentiy made by a crea- ture of the sterner sex, that the government had been speculating by selling army blaukets to tue ladies for their redingotes. ‘10 BE IN THE FASHION this season one must have a “dolman;” but tha phe | of Re known by this comprehensive name ls suiticient to confuse the ideas even of ond well. versed in fashionable minutim, The nama “dolman’’—properly pronounced dole-moug—is & French word meaning a hussar’s jacket, which gar< ment is worn by a French hussar when tn full uni+ form, hanging ivom the rignt shoulder. When the garment, or rather the name, imag pressed into the service of the ladies, it wa: applied to a loose sacque, with a seam down the back, having perfectly straight, demi. wide sleeves—cut without seams in tha back and not joinea together like oceenry sleeves—which were not intended for use, bu! were allowed to hang loosely trom the shoulders,. yet provided, nevertheless, with buttons and but« tonholes, or loops, the entire length on the inner side, so that, if desired, they could be closed. ‘Thid. was sometimes worn in the regular hussar style. Fashion demanded a change, and the name still remaining popular, by some process of reasoning, not wholly Toutcal, perhaps, it came to be applica to any garment used for street wear which had Jong, hanging sleeves depending below the sites, of the garment; and this has given cause for muctt indecision as to what a ‘“dolman’’ proper is. The garment to which at present the name seem4 most properly to belong is a sacque with long, flow- ing sleeves, and having the armholes cut particu< larly large and of a peculiar shape, so that it can ba easily adjusted over any other garment, tnus rend« ering it especially Apecenate for an evening wrap or an independent cloak. Of this style are two known as the “Royal” and “Plain” dolmans, the former having deep pointd on the bottom and a Watteau bn in the back, the other much plainer and quite as comiortable. The name, however, is quite as ularly applied to cloaks in the style of the “Mantle” dolman, which, iscut much in the shape of the old favorite, th “Metternich” mantie, but improved, and provided with elastic bands, placed under the arms, so that the sacque shape is retained as nearly as possipie. These are the only really practical styles of the so+ called dolmans. The other styles are neither com< fortable nor becoming, and require a great quan< tity of goods, which has to be cut up to no purposes EVENING WEAR. Among the most beautiful articles for soni wear white cashmere sacques take the lead. Som: of these are quilted with white satin and edge with ermine, Others are embroidered in @ creamy floss and finished with deep whita yak. Next to all white come the whitd cloaks embroidered in colored silks. ‘The imix tations are — exquisite—palms, —_ resemblin; those of India shawls, gay wreaths of auvomna: leaves, pansies, moss-ro3e buds, and shaded gree! vines, With brilliant blossoms. ‘Many of these fe ments are fastened with large clasps of hag hs zed silver, bearing grifins and Egyptian heads. el< ties, that recall pictures of costumes worn by out great-grandmothers, are also to be seen. Lon, sacques of heavy silk, ‘lined with quilte satin, edged with fur, and finished with along, pointed hood, attract the @ Of won. dering sight-seers. Who will wear them? Whem and where’ A silk jue of lovely My, trimmed with wide bands of fine peacock feathers, also drew much attention. In fact, the profusion of highly-colored garments, with their bold com- binations and barbaric extravagance of orna< mentation, makes us wonder at the lavish outlay of storekeepers and ask ourselves, ‘“‘What will they do with those left on hand ?”” There isarevival in many things of quite old styles for everyday wear. Large, old-lashioned square veils, for example, square handker- chiefs of twilled silk for the neck, with fringed borders, side pockets of leather, with belt and strap attached, gilt or steel mounted, and coiffures combed up straight from the neck and mounted in puffs on the top or at the back of the mann Very antique these, but unbecoming to but very few. are again regainin, pularity and are dis- posed in innumerable graceful ways, usually at the side, low down on the skirt, if for the house, a still on the side, but supporting the looping, i used on @ street garment. For house wear these are frequently of a coutrasting color. Itis a matter of congratulation that black velvet ribbons are regaining thelr well-merited vogue a9 @ garniture. Besides being always effective, there is no other style of trimming that can be used with such propriety on so wide a variety of goods, and their durability is beyond question. All widths promise to be fashionable, but more especially the narrow ones, which can be #0 ef- fectively used in clusters and various designs, and as a supplementary trimming to folds or plaitin; The modistes as yet give no Se as to what the holidays will bring forth for the New Year’s recep- tions, But of these more anon. SASHES their THE DANISH INUNDATION. The Consul of Denmark acknowledges the receipt of the following further contributions for the bene- fit of the sufferers by the above calamity :— $150 Chas. M. Fry, $25goia 28 50 38 Pimet Pendergast, ‘The 7 sum of 1,500 rix dollars remitted to Vopenhagen by cable, making of 3,600 rix dollars. SUIOIDE IN NEWARK. By means of 4 carbine, loaded with water as well a8 powder and ball, John Hetzel, a Newark Ger- man, residing at No. 73 West street, blew! out bie brains on Friday night. He had quarrelled, it seems, with his stepson, ana, being weak-minded anyhow, gave way to morbidity and too’ his life. No inquest wag held,