The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-08-30

secosa cs.sidersoa. Il appears thst 10 had esstAs
tie con6dea0e Of his superior oaioors for son
fro% h. seOsrste oo.naad aud had. therefore. do
terrnjned r. Desert his position . private only
enrolled ia the corps Of tho Roy SapPers and Miners;
and as to the third consideration. appears that no
on the water he could be arrested for deseron aud
carried back to Great Britain and that IL could not
be until he had actually touched his foot on tho
American soil chat he would BIO free; and that seeing
Corporal Taylor. under whose command ne had
served. approach the ship with the officers charged
with the execution Of my warrant while said vessel
wss approaching the port OF New York, and before
she had reached the dock. he had concealed himself
to avoid arrest and detention from his deserion.
And as TO the fourth consideration, 1t appeared
that the forging might as well have been committed
by the said witness Duffy, or Taylor, o. by the ac
oused Calder. Tho only evidence was, as have
OF Calders handwriting. and q comparison OF hand
writing made by him. Such evidence BY ono witness
alone. even from . witness beyond all suspicion.
would not Of itself be sufficient to justify the com
mitment Of the accused for trial much less when
coming from one who, under the circumstances,
might himself have committed the offence.
But there WAS another consideration which does
not 50 much appear, from the ANNEXED ps
pers but which appealed before me and ma
terially Influenced my opinion. and that was
the manner in which the witness Taylor gave
his testimony before me. He testified very
positively to facts which, from his own account
he could not know to be true and he varied bis tes
tmony from time to time to meet objections which
suggested, and supplied by positive averments de-
fects which he thus discovered had arisen from his
previous statements. Under suoh circumstances, |
should have felt myself called upon to charge jury
that it would not be safe to rely upon his testimony
and did not feel myself warranted in relying upon
1t, unsupported az it was by any other evidence.
Wherefore 1t is that do hereby certify and report
not evidence enough Of the criminality of the said
vii lam Calder, according to the laws OF the State
of New York, to justify his apprehension and COM
nitment for trial for the said offence OF forgery II
the same had been committed in this State.
Given under my hand and seal at the city Of New
York, this the 23d day Of August. 1868.
(Signed) J. W. EDMOHDS, Il, 81
SUPPLEMENTARY OPINION.
To the President of the United States:-
beg leave further to report, that after my opinion
Of the 23d Of August was promulgated In this mat
ter to the several parties interested therein, appca-
ton was made 70 me- on the affidavit Of Anthony
Barclay and James S. Taylor, hereto annexed, by
Charles Edwards, Esq, before named, appearing IN
behalf OF the British government. for postp one
ment Of my final action in the matter, until evidence
could be obtained from Great Britain to supply the
defect ON which had expressed my opinion that
the accused ought not to be delivered up for extrad
ton.
And after materially considering the said applica.
ton, report that ! am Of opinion that it s not
within my power to grant said application the same
~
States, and therefore declined to grant said app-
cation.
In witness whereof have hereunto set my hand
and seal this 18th day Of Ans Tns lsSs
the Csmpfro7sr~Er. Ri ". b. Reynolds g.. a.
@. Fiagg, the C0,aItrolLev-Thisw was an application
made BY Mr.. Willard, on the part Of Mr.. Reynolds
contractor, to the corporation for manda
mus, for the COMPTROLLER to show cause why
he should not pay to the complainant the sum o.
81 O5l due to him by the corporation for services
done in removing ofia from the city. Messrs Blunt
G0n ans Whiting sd ng q ~ c sssan for the
The counsel for the plaintiff opened the case for
Mr. Reynolds He argued at great length, that "a
there was no specific remedy for tina. individual
they were obliged to apply tor mandamus; and
accordingly, he asked the Court on that ground to
grant them piandamus. 80
II. D. Dillon, the Corporation Attorney then ad-
dressed the Court on the part Of the defendant and
agreed that the present case was not one for
damus. IS there was specific remedy for the plain
tiff, who sould bring suit, If he pleased, against
the Corporation, for compensation rendered for his
services as contractor removing dead animals and
other oial from the city The Oomptroller's reasons
for not paying the compl Ainants bill was that the
ofal was n,s legal or valid, and consequently he
had no right TO pay him the bill.
His Honor, Judge Edmonds, then informed the
there was q specific remedy and in this case theirs
was one. He thought that a remark made by
the council for the defendant, who said that
!" it would be much better for the plaintiff
to sue the Corporation than apply for q
mandamus," was very good one. The writ Of
the mandamus ~as extraordinary prerogative
first brought into use by Lord Mansfield. Il is prao
tised in England to great extent and only in those
cases where there no specific remedy.
Mr. Willard then rose and moved that before the
other counsel for the defence would address the
court he would wish his honor to hear his associate
r. B. Cuttings argument for the plaintiff but as he
was not present, he requested that the court would
adjourn the case until the next day, when he would
be present. The court, without any objections
granted his request, and Immediately adjourned until
this morning at ten o'clock.