The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-05-08

detective and as most carelessly drawn. Ju0ge
DAVIS ~ a long aud able dissenting opinion,
dssecis the uflluavit ana SHOWS us enlre
insuiilcency and closes as fonows:-"Ay btetn-
rem are however. 81 opinion tnat the lacts are
res dent OF the state, ana that the attachment
should te held wand on mat ground cannot
sought or granted on mat ound, There y no
assertion OF non-restaeuce. Inc defendant u
dence Is bated altogether upon a supposed pie.
sumption that he mas ned TO foreign country or
there from tue vigilance Of the officers rom whom
he escaped tnan IN TINS state. j am not able 10
vigilance has been no greater since than AZ Tue
time OF the escape presumption easel upon II
Is large enough 10 furnish numerous places
OF concealmeut; and even the city Itself mas
from the search Of who seek diligently not
TO ma. In my Judgment me fact alleged IN the
tie code 49, think. fact TO distinctly asserted
and afiirmatively proyen.n IL rs understood that
MI Wes' VIII at once carry the case 10 the Court
OF Appeals.
THE KINGsBEIDGE ROAD OPENING.
James Lynch, a party assessed IN the above
matter. appealed 10 the General Term from the
order confirming the report OF the Commissioner
OF Estimate and Assessment. When the appeal
came to be heard motion was made Dy MI.
Grenville P. HAYES, IN behalf OF property owners,
\ 10 dismiss the appeal on two grounds. FIRST that
no notice had been served The attorneys Tor the
r.
ond that the order was NOT appeaaole
chef Justice Davis, delivering tue opinion q
the Court h0lds that there was no necessity OF
serving notice OF appeal upon any party put tne
Corporation Counsel, and tnat the ORDER IS appear
able on its merits Inc Court reviews many de-
cslons IN support OF his opinion, ana particularly
upon recent cases in the Court OF Appeals, clteu
by NJ. Deerlng, counsel for the appellant. me
opinion l. very long ana reviews in detail the MIS-
tory Of legislation upon the SUBJECT OF street
p aPa 'n swardsa and assessed it
is the OPINION OF the Court that between
parties 70 whom an award Is made ana those as
sessed there IS no adverse interest and therefore,
10 necessity OF a service of notlce Of appeal upon
ether by the otner. The matter involves over
O00 000 aud the decision IN THIS case Is OF great
Importance 10 all interested. The motion to dis
miss the appeal, OF Lynch IS therefore denied,
with costs, all the judges concurring.
Tue matter viii come TO be heard on it's
merits at some future day OF the term. Messrs
carter, Halves, Andrews Shaw, Ma nan, kttcnell
and Jelife and others appeared the motion,
and Messrs. Deering and Purdy were opposed.
THE MISSISSIPPI STATE BOND FORGERY.
on the 24th OF September, 1872, Thomas Cum
nngham was tried and convicted In the Court OF
General sessions Tor the forgery OF 1000 warrants
OF the State OF Mississippi Tue prisoner had the
warrants engraved IA this city from an original.
and the lac smiles we're perfect 10 the signatures
or the state Treasurer and Auditor Of Public Ac-
counts. Alter prOtracted trial Of over three
DAYS Cunningham was sentenced 10 the state
Prison for five years, but ms counsel, Mr.. william
f. Howe sued out a writ OF error and carried
the case to the Supreme Court. Inc argument
slstng that the utterlng o. the forged bonds was
not pr 10 have been enected In TINS state,
and also that the bonds alleged TO nave been
forged we're not instruments upon which forgery
could be predlcated. the seal Of me state not De-
ing anxed TO them. plstret Atr9Iney Pnelps , Vp
Court yesterday rendered decision, Judge BRADY
writing tue opinion, reversing the Judgment anu
ordered Cunningham new trial. Ine former
irial occurred during ex-Judge Garvin's admins
stration.
STATUTORY DEFINITION or LARCENY.
In the case OF George wegwer, tried before
Judge Barrett 10 the oyer ana rerminer, charged
with swlndhng By the wholesale Jewellers OF this
CITY, convicted and sentenced Tor five years 10
State Prison, his counsel, Mr.. VIM. T. Kintzng.
raised the point on appeal that the facts
did not justify the conviction In that tine
owner had not only paired with Inc
me ssme was Obtained by trick ana artifce lie
gods having been gwen MIN as samples aud then
sold on his own account. AT tue trial Mr.. kintz-
ing also raised the polut thai proof Of similar acts
OF larceny not admissible, the same having
been admitted BY the Court on the question u
criminal intent. Judge Daniels, VINO delivered
the opinion OF the Court, held that the rulings OF
Judge Barrett in the Court below were correct and
Kintzlng 10 take out writ OF error and carry the
case t. the Court OF Appeals. as the questions IN
VOWED are Of tue greatest Importance.
BITING orr AN EAR NOT MAYHEM
James Burke was convicted In the Court or Gen.
erai Sessions before Recorder Hackeit on the
hem and sentenced 70 state Prison Tor the term
or fifteen Years. Appeal was taken to the supreme
Court General Term, by his counsel. Mr.. Peter
Mitchell. VINO cited the following points Ia behalf
OF the piaintn IN rror:-First, hat the Court
below erred IN admitting nearsay evidence;
second that biting on an ear was not MAYHEM as
contemplated BIZ the stature, and, third, that
there was no proof OF premeditated design
lying In wait ~ THIS case, iOurth. efred In charg-
lng the Jury ana constituting the statute on may
hem. Inc General Term Yesterday rendered de-
cisian reversing the conviction, ana ordered
new trial. Judge Brady wrote an elaborate
opinion IN accordance with the above points,
nodlng tnat the Recorder erred Ia deciding that
this offence as proved within the statutory
offence u mayhem.
THE BROOKLYN BRIDGE.
An appeal was taken TO the General Term from
an order appointing commissioners Of appraisal OF
land necessary 70 the purpose OF completing the
Brooklyn Bridge. The main point raised on the
appeal vas that the time fixed oy the Legislature
for tue completion or the bridge had passed when
the commissioners were appointed. Judge Braay
gives the opinion Of the Court In a lengthy, but
quent legislation mere was clearly a legsla-
i've waiver u the INIT prevIousy declared aud
an extension % the time. lie concludes a. toll
lOws:-"f0rieitures are not favored by the Court,
as SHOWN W. tile case "a wendell, and tn au-
thor ties tncrein cited aud the magnitude and I'M
pOrtance Of the enterprise 70 when tue matter re-
Iates. ana the private interests involved are too
KrtaA " ~ aDahuOhcu ~ auf Os..LA iHah u"ints-
taxable intention on the part " the Legislature
" destroy IT.
TIE TENTH NATIONAL BANK SUIT.
The Tenth National Bank, which loaned 20 the
Commiss loners Of Charities and Correction over
drafts amounting 70 s277.93O o5, exclusive Of in
terest, we're paid the principal then sued Tor
interest. and the verdict was against the bank.
The case came before the General Term on excep-
ti0ns raken. The Court says, CHIEF Justice DAVIS
wrlurg me opinion, the city distinctly proposed
10 pay me sum principal in tai o. the claim,
and that me cOnaitiOn vas that the claim or in
terest should BE- waived. ana On rms there was no
substsntial conflict mere was no express con-
tract bv the city 20 paw int est. ana the motion
Tor 4 new trial must be denied, a. when creditor
has received the principal debt a. -ucn 10 fun he
cannot maintain az action or interest
THE MARTPOsA LAND AND MINING COMPANY.
In tue appeal taken IN the suit Of Eugene Kelly
W. The Marlposa Land ana Mining Company, the