The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1865-11-04

| tatiOn OF Additional Amduvtts-COn-
| dieting Testimony-Tho Argument OF
| CounseI-The Judges Decision Re-
served.
| SUPERIOR COURT-CHAMBKRa
| Before Judge Garvin
The arguments the application for vacation Of the
order of arrest in the Colonel w. w. Allen against
General G. Orega up in this court for hearing
yesterday The plaintiff, it will BIO remembered, mas IN
stuted proceedings for the recovery OF seven thousand
dollars alleged to have expended by him in aid Of
the cause of Mexican emigration, whereof he Declares
he was appointed general agent by tho defendant The
latter was apprehended under order from the Court
bail being fixed thousand dollars for his appear
ance He is now in arrest though actually at liberty on
| parole.
| The counsel for the defendant-Mr Parsons-yeser-
day submitted the facts, as already published in the
HERALD and appended additional afidavts to sustain
| his motion for discharge Of the order Of arrest.
THE ADDITIONAL AFFIDAvirs.
Tho first affidavit was that Of DR.. Erastus Wilson, who
testies he the OF the insertion OF the
card In the NEW YORK HERALD Of May 1885, and ex-
plains its origin wsDeponent was Interested IN
he Mexican emigration movement and called General
Ortega who told him that those who had used MS name
in connection Herewith, and particularly Colonel Alien,
authority for doing whereupon he felt author
lied TO- did contradict Colonel Aliens announcement
| by the card referred TO-
The next affidavit that of General Ortega who tes-
tes that believed Dr. Wilson to be or have been
the secretary Colonel Allen. he considered the card 10
| have been published by authority OF the latter -
The affidavit Of John Shepcy formerly in the Firth
York Volunteers sets forth that he was IN the EN-
poy of Colonel Allen secretary, and that he meyer
| knew Colonel Allen to pay any money to intending
engrans that he became satisfied whsle in this position
that Allen had authority for his undertaking. IN tact
tina, he was a humbug; lie further that Aliens
character for vcracy and truth in the community where
resides bad and that the witnesses Herman and
McNa x Baker and confined in Fort
Lafayete their reputation was also decidedly bad; one
day Alien pretend TO to General Ortega for money,
but was followed by deponcnt he only went around the
block and returning said he had called neral Ortesa,
who SAID he would go down town and get the money.
Colonel "Byn Wilson in his affidavit testified TO an
interview with General Orega, in which the latter en-
phatcay denied his connection with and dsapproved
OF the emigration scheme and was much annoyed by tho
conduct OF Allen defendant would not believe tho plain
| tin under OATH
Colonel Addison Farnsworth testified in confederation
| Allen
THE RxBUTrNo AfFIDAyns
were then read by counsel for Colonel Allen
William Herman testified taking reports from Colo
mel Allen General Oregn and thatthc latter promised
HIM Tor 9s ana INA. on o
ga. Witness who had known Shcpley IN the army tes
fled that he Of bad character, would forge the name
Of commanding officer Of his regiment, was thief
and that he discharged from the service OF Colonel
Allen
Emanue, Could late ,of the Spanish army testified
that he was present interview when Ortega made
! the agreement with Allen and promised him money
inc n Tho West cstIed that General Ortega referred
them Colonel Allen the managing or general agent
(Obection made TO their testimony by counsel Tor
the defence OF absence OF proof that the ale
cations in accordance with the laws OF the states
| where they were subscribed TO-
Colonel Allen offered In evidence his knowledge OF
facts confirming the belief that the defendant had nine
eight thousand dollars in gold in the Bank OF North
America for the furtherance OF the objects Of the move
mcnf.
Other witnesses testified the good character of those
| deposing for the plaintiff
Tho adnvts here terminated, and the
respective counsel submitted their arguments.
ARGUMENT COUNSEL.
Mr. Parsons then presented his argument. He stig
matized the action Of the plaintiff most dsreputable
and stupendous attempt to disparagc gentleman or
/ high position and character The charge Of fraud
sustained; there only attempt ut proof OF y
i debt for employment Even IL General Ortcga had com
mittcd fraud he could not, as citizen OF Mexico DO
restrained from going there and taking his personal
| property with him. The response OF the plaintiff to
their adavs did not anywhere state except In general
that plaintiff had expended any money. nor was
there any proof OF his employ except the
general terms He would submit the points, FIRST that
the complaint did make out sufficient 10 justify
the arrest; and second that plaintiff rested on
his affidavit which affidavit fully met by de-
endants The chief difficulty OF the defence lay in hay
ing taken their witnesses from the enemys camp TO
speak, and the plaintiff responded by putting in evil
dencc allegations against the character of those
| These allegations made by from different
tions OF the country who unknown here and had
evidently united with Colonel Allen in the foray on
| Gen raj Ortega.
| Mr. Holmes counsel for Colonel Allen submitted his
argument Tho refuge OF a rogue. he said, under
the cry Of a conspiracy. They had heard much Of Gen
|
of a country, he absent fro that country. He
here for some time. What was his businessy He had
not stated that business In his afidavits. He had
bureau at the Barcelona Hotel and secretaries yet he
not authorized to do anything for the Mexican gov
eminent In the face Of cse adavits his business
| plainly evident The publication Of the card In the
| Herald ingeniousy arranged by the defendant so
that while IL indirectly from plaintiff he might by
chain OF fall back the declaration OF
belief thai II originated with the paintin and pub
lshed a sequel TO their interview. The fraud lay In
the fact that General ortega privately commissioned
L IN m " hc ation mo cmpnt
while publicly he denied all connection herewith that
he said he might not create complications between
the governments OF Mexico and the United States The
character Of the witnesses for the plaintiff had
been ssssed on the ground OF their imprisonment in
Fort Lafayette bounty brokers and bounty jumpers.
Now, IL was we'll known fact that Colonel Baker had
acted their arrest In the most high handed manner,
ana that many innocent persons were incarcersted-
| Ter were assailed BY tho defence
Mr. Parsons and begged leave 10 submit couple
objection was made BY Mr. Holmes on the ground Of
no notice having been given, and the Judge overrued
The Judge said that In considering the motion he
would have conne hts attention TO two points First
whether tho debt was fraudulent contracts and second
whether the brought the defendant within
reach Of any clause which could cause bis arrest
Mr. Holmes resumed-As TO the rst point he repeated
that portion Of Colonel Aliens evidence asserting that
General ortega was in possession OF the OF Sse 600
In god which st present on deposit in the Bank Of
Ssfsndsnss action n permitting painii 70 continue or
sanzing the movement Fraud was the presumption
under such circumstances.
The Judge defined the In which fraud pre-.
sumed and not presumed he eyes Of the law II =
man was unable 10 fulfil contract made In good faith
and with which he promised pecunary consideration Il
fraud. Il necessary that the guilty intent
should exist throughout.
Mr. Holmes in rcsumng, commended that the contract
being assumed, defendants subsequent dsavowal
dered the contract fraudulent His playing fast and
loose denial before and admission before others
Of his connection with and OF Colonel Aliens agency Of
the movement were proofs Of the fact As tho nd
point contended that u not necessary the OF
the defendant should within view Of any particular
clause, but within purvicw Of the section.
The counsel rested their case and Judge Garvin took
the papers
] surrogate's Once.
| Before Gideon Tucker
WILL OF BRIDGET FULLY.
This will has been admitted TO probate II gives oil
the and personal estate Of the estatrx 70 the Roman