The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1872-03-07

TIM eiSiUyfflR his 1hngunge and 10 sraSo that the
So N NV M1lSS 20 for the app
cation Of the rule the case now before the Court,
and VIII p ns we was
iThe Court pointed out the relations OF the
two cases and continued.l There was but one
opinion delivered bg the Court ana as that related
10 the precise p0ln must infer, The absence OF
any dissenting opinion and tine general Judgment
%e enn Of the Court and Of ali VINO heard the
argument Chief Justice Thompson states the rule.
ne Itself should have een or
resort should nave been had To the government OF
Buenos Ayres 70 obtain II or an authenticated copy
O11 or that the master OF the vessel should be pro-
duced upon subpoena ana give evidence OF Il. the
Court used the general language 1--WE think the
the case falls within the rule, that when the nom
production OF the written instrument ID satisiac-
sens shown TSs rule &c Of eS
dence, applicable alike to criminal and civil cases,
and there can be no reason why i should not apply
was subsequently extended. simply apply
1t to this case by saying that there is
that the primary evidence. the documentary evl-
dence IS withheld by the prosecution, and that they
the Evidence saduceS to the Court has
TO the effect that THESE papers were stolen from the
public records, waEanting tue conclusion upon the
part OF the Court that they were lost or destroyed
sufficiently for the purpose OF entirng either party
to give parole evidence OF their contents. In my
judgment the case Of the United states VS.. Rey burn
dlsposes Of
THE WHOLE QUESTION,
and relieves me Of the necessity or giving any par
tlcular reasons OF my own for the rule mere stated.
My impression at the outset was that the rule was
as comprehensive as have subsequently found 1t
sanctioned by what consider the authority of an
adJudged case by the highest tribunal IN the land
Mr.. Burrin then rose and took exception to the
ruling OF the Court as delivered. The exception
Counsel then made the further objection
TO THE ACCESSIBILITY OF THE WARRANT
'tnat 1t dd not pretend to prove the existence OF
sioners Of Audit TO entertain"
Counsel for the prosecution intimated the wish
that the defence should present all. its objections
The Court suggested that that would he the proper
course, and That counsel should illustrate The
sibe.
Mr.. Burrni presented his
THIRD OBJECTION.
That the warrant did not pretend 70 prove that the
defendant did not audit the claim; out, the
that such Is the legal presumption from the face Of
FOURTH OBJECTION
That II 1t be offered to prove the evidence Of q
liability which it the duty OF the defendant to
audit It is not admissible, because the lndictment
contains no allegation IN either count as TO the
claim mentioned IN IT. or II II was liability which
came within the jurisdiction OF the defendant under
the fourth section OF the act.
OBJECTAoNs 10 TIE WARRANT AS PRIMARY EvI'
PENCE.
Mr.. Burrfn presented the following ObjectlOnS:-
First that evidence had been offered to prove the
existence Of the facts which necessarily preceded
the warrant-t0 wit, the presentation OF the
claim and the jurisdiction ana action Of
the Board OF Audit; that the warrant IS
not evidence to prove the payment alleged IN either
count OF the Indictment, because the payment
Is wholly lmmateria and forms no part OF the
offence OF not auditing or neglecting to audit. ana
for the additional reason that there Is no alega.
tlOn In either count OF the Indictment thai the
claim was paid upon tnat warrant, or that 1t was
not a just ana honest claim against the county OF
New York; and for the further reason that the ale.
CATION OF payment and the false certificate, as al
legged, are not allegations Ut nOnfeasance, but are
charges Of malIeasance, which would not be admls-
slble as evidence under the indictment, which
merely charges an omission OF duty; and for
the further reason, winch Is applicable to both
counts, that the Indictment does not charge
specifically the facts and circumstances COnstl-
tuting the specific Offence nor shows in what
particulars the defendant neglected his duties.
The Indictment charges generally that the defend
ant wifuly neglected to audit &C.. and further, That
the indictment contains no allegations on which
the warrant is admissible as evidence. And,
LASTLY,
that no evidence for the prosecution whatever Ia
legally admissible under the Indictment.
Court, said that they were not technical OBJECTIONS,
but such only as appeared to counsel for the de-.
fence eminenty proper and strictly legal.
Judge DAILY, IN reply, said that ne fully appreci
ated the weight and Importance OF the objections
but as 1t was now too late for counsel to enter upon
mis- illustration OF them he would adjourn the
Court.
me Court then adjourned till eleven O'Clock this
morning.