New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1864-05-04
~ux EXPRESS NEWSPAPER CASE.
a,Iexcd Bsufiiutiop of Account Books

H. yaVi-If there any sfidayits to he read
night {, hove chance 70 answer them. understand
We Gegerel Term 10 have disposed Of this case
Mr. CAM suppose am entitled to be heard in the
,1i,erv way when cause ia sought to be taken from
Inc calendar Tho matters have to submit arc pelt'-
lsn and in part matters hat have occurred since the
alleged order was made Ut the General Term.
JIe (oHyfI hove not the slightest objection 10 near
what you have ~ say Int do not think any hing can
induce TO undo tho order OF All the JUDGES q, Tue
General Term The counsel for the plointin have been
heard.
III. Crau,-win your Honor not hear me say woTd'
NJ Carl have an AFFIDAVIT of Stephen r Clarke
tstng certain facts that have come to our knowledge
a~c' that day.
81 S4hh-The Court viii understand me as OBJECT
ln- this.
f4e cSsr1-Yes, Sir.
NJ. Crea then read the following affidavit:
stephen Clarke the rsinda IN Til. action, berg duly
Hce Of IRE Nc,- York Err iewsPsper for the purpose
n sxsmnnr the books Of said spapcr and tie late hrm
ofJ r. brooks Co. that eAsniging Of she book Of
ad firm called synopsis book DE found t the balance sheet
for The yea. 1851 was tom ANA mnlaed and pothton
destroyed contained statement showing this depenns ana
~ DEF 'dsnt interests respectively in said Iow sIer &
hc plain owned .iHth q ad esa6sh n Fhs s sS
sndsi James Brooks onehef end zoe f . iournai
,ona cutles Of the Profits nd dr. Of eso OF As p' n
aers for January 1860. with references 70 psses IN
:be small ledger where sai5 r,,ne' are 49,, S;oving
On said PAGE Of the dly -0dSh n %" Isn"syy
$50 n s6p that fhe PAGE here referred TO Is PAGE p Of the
small LED er above cuuoneG that On fefr To sra f.e
rr H. Isd ben taken ont thc sad ledltr that d PAGE -
,outi9ed entries snowns ra'' %, t
rtarcss respectively the claimed by the piinr
la aid synopsi. boob and snt LEDGER the defendant
sr5us Brooks that ct that time said books weTe IN perfect
'',ion nd in -esrect nurlaied and l none Of ne
gas and part thereof bad been torn theTerom that
sent has seen, handled examined said synopsis
y small LEDGER either Of them ince the said rs' Gay
lily 1883 until the sid 2Hh day Of April 04 and that
portions Of said books Of account unlisted and de-
we'd since they have been IN defendants exclusive pos
son ana control coiued important and material evidence
n which the plaintiff reiieds prove his case -
kr. Cram presented the further affidavit OF himsefi
ating that this Issue joined in August last, ana
q cause set down foT November that II was post
ned from term 10 term till the +th Of April last. when
4 as reached but again postponed the application
IL the defendants I'LL the llsh Of April. and was lot
reached during the term.
Also the affidavit OF Mr.. Robinson stating what oe-
,uried the General Term; that deponcnt stlenloasy
opposed the application TO postpone the cause til June
giving cOgent reasons therefor out Judge Day re-
marked that il should not Dc tred TIL the second Mon
DAY in June and that any application 10 postpone I'll
that day should be made on notice to the plaintiff
,ttornef, that thereupon doponent inquired 4 the !
Court made order to that effect to which Judge DAILY
replied that they did not but such was the under
Also, further affidavit by Ir. Macklin, corroborat
ng chat Of the plaintiff Clarke
Ar Cram then said: am sorry TO hear your Honor
say you will not interfere with the order still, desire
70 why your Honor should interfere. have been
Informed that two banker Mr. Galstin and Mr. Per-
Aet called OF the Judges pare 70 ask That this
,ause might be postponed uEti after the adjournment
MCongress. And in my own opinion, without any d's.
respect the Court think they had no power on such
application, postpone this cause, there being no
notion 1t is tie first time ever knew Of any such ap
ploation being granted OI oven listened - ~ ne zen
sra Term of this Court. II would undoubtedly have
beer within their province If the cause had been before
from appeal and upon tie merits 10 have MADE ais
position Of it; but they had jurisdiction, in my
opsniOn, in this case. And 20 further and say that
they made order, but merely expressed WISH No
ertaYa and hn lprp IN
jicod Now there is this new fact which was not be-
src the Court Them and it is one to which any Court
structiOn the spoliatOn Of important testimony
contained in books placed under tie charge OF an
,hcer of this Court, tie receiver, Mr. BROOKS have
een the books Myself ana II appears very dlstlhsty
that there has been willul destruction Of very impor
taDt evidence sustaining the theory of the plaintiff
And further submit that this is case in which tho
issue is OF tins Character: Either my client has
itted forgery, the defendants perjury 1t Is ques
ton far higher than that of property and 10 80 con-
sdered by my client. Therefore, he should have an
opportunity Of early yiLdicaton Of his Character
And am sure your Honor will bear with me when
say that il is very seldom that great indulgence has
been shown 10 defendant as has been shown ID TINS
sause 1t has been put of time after time and now, If
this disposition is to be made Of it, 1t comes 70 this
hat defendant may come into Court and select the
terra the time and the Judge as he pleases. Now, 1
aomt with due regard 10 the rights Of the plaintiff
thst the case should take its ordinary course and
should not DO postponed, without sufficient and legal
carse that il should be interrupted by any order
the General Term and that the fact that the receiver
Il member Of Congress is reason for delay through
a whole session Of that body.
The COsn-Haye you anything to say, MI. Smith
Mr. saah-Nothing. except that the General Term
made the order.
Mr. SritL-I did not interrupt you. The gentleman
himself present at the General Term. The am,
dayits he has presented state some OF the acs nvt nor
pear all All this thing was gone over at the General
Term the same objections raised, and the only Dow
thing now s this allegation in respect " the books VIC
have had no intimaton IN regard to this and think IT
rather unfair ~ read the ahdavIts here before We
have had an opportunity TO answer them.
Hfr C-an-You shall have al opportunity
Mr. Sm8-Thls is only following up the entire course
NJ the counsel from the beginning Of this suit Every
nine decision OF the COnrt is not satisfactory 70 his
client be not only finds fault with the deendauis counsel
but clso with the Court One would suppose amer hA'
aug received the rebuke he did the other DAY az The Cen
efl Term he would have been little more careful
about making statements.
Mr. Crawl received no rebuke; when / DO am
ready 90 answer II. ~,
vac called to the points said he did NOS prepare theH
M. Cyanp-I prepared them.
Mr. sSanA-I Understand this matter is oil disposed OF
ty the order Of the General Term and that the case
stands for the second Monday in June. Seeing the
the calendar this morning. came " obk ulS
Court TO order over. did not suppose your AonoI
would undertake reverse that order.
Mr. CrGm-Permit 10 say, IN reply to the counseis
statement about complaints that when the Court does
something In favor of my client shall complain no
more but until it does shah complain not transcend
ing the due limits of spect that to the Court IN
pependenty Of what / owe 10 myself as an advocate.
When do transcend them tho Court win punish me-
Tie Court-The application for postponement was
made by Mr.. Brooks personally, and did not under
stand Mr. Robinson making strenuous opposition to
the application. Us he states In bis affidavit. On
che contrary be said distinctly that lie willing 10
extend TO MI Brooks all reasonable indulgence. All he
wanted was that some time should be fixed certainly for
the trial OF the cause and In order tina. the should
rot be adjourned suggested that IL should
teput GOWN io we second Monday 10 June. and II any