The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-01-23
THE COURTS.
Selling Liquor Without License in a
New Legal Aspect.
THE FlSHKlLL BANK DEFALCATION.
Notion for New Trial Denied for the Con-
vicled Silk Smugslcrs.

Illegal 10 carry on business liquor dealer without
license tried In tho Second District Court ycster
day, before Judge Clancy and jury. The plaintiff,
Elizabeth g. Jay, commenced proceedings as landlord
TO dispossess William H. Bennett, her tenant OF the
premises on the corner OF Elm and Walker streets, on
the ground that he permitting an undor tenant TO
keep liquor saloon on the premises without license,
The Excise Commissioners having refused to grant
license Tor tho place. The is brought under tho
laws OF 1873 by which landlord is authorized
mcnce summary proceedings against tenant in pos
session under n lease and remove him If no carry
Or suffer To be carried Illegal trade business.
The plaintiff claimed that her tenant IN this was
carrying such illegal business, no having no license
to keep tho saloon question. Judge Clancy after
hearing the evidence pro and con- Instructed the jury
10 find verdict IN favor OF the tenant Tho following
is his charge. embodyng tho direction TO tho
dict:-
have spent great deal OF time in looking up au-
thories on the principal points involved in this case,
Consulted many members OF the Bar, and IN TACT,
tee. shirk no responsibility, but fearlcssly and
faithfully perform my duty, AS understand IT, rs my
best judgment dictates, and hope that 1t will be so
received. AT very carly day the whole matter may
DO reviewed by tho General Term OF the Supreme
Court, whose excellent opinions generally well
received and approved. There upon review, my
errors II any, may be and Will DO corrected, and the
Bar ana Bench IN ,dc OF The true definition OF
the law IN this important particular. 1t must be ad-
United that strange ana difficult subject has been
undor discussion. Tho principal questions are, ISIS
tine sale OF Intoxicating liquor eguly and, II 1t Is TO
what extent does apply this 2" Chapters 5S3
ana JAG OF the Laws OF 1873, and chapter G2S of
1857 afs the statutes which have bearing on this
proceeding. Chapter 5S3 refers illegal trade bust.
ness GAG 10 damages Tor unlawful SALE and 6S OF 1857
the obligation to procure license Now, we must
Tor society and :he constituent parts thereof
and enact IN clear, comprehensive English
such laws as the emergencies Ia u progress
sive age OF great Commonwealth require,
being at tho same time possible, just aud useiu. 1t
is certainly necessary that tho people should become
acquainted IN some way with the intention OF the
Legislature, and not led asiray by ambiguous words
ana sentences anu indefinite consequences They
should DC snch that the well meaning, law abiding
sizen may ana can obey the commands enacted with
put renonnciug any right he may have to enjoy
happiness not inconsistent with the rights vi his
icow man. They should be just, comfortable as far
rs possible to the nature OF things, to the constitutions
men and their necessities They should DO useful,
VI some utility without restraint the liberties OF
ezcns mercy tor the sake OF restraint, ana without
benefit or advantage 10 any Many laws have been ON
our statute books during the last twenty years in
relation 10 excise matters that were huru dangerous
ana subversve All principles OF justice and impart
nifty. cannot ignore the TACT (withuut dong great
nJustcc That tue present laws IN relation to the salo
liquor subjects almost every day OF criticism by
both Bench aud Bar. They, however, omit to desig-
nate the sale oil liquor without license as an illegal
trade. Nowhere ali the authorities presented
py counsel do 1 ind that applied. cannot,
therefore, on my own judgment arrive at conclusion
that many ADLER minds do not express. ALI the
laws IN relation 10 excise matters have IN them clearly
distinctly expressed provisions requiring COM
pii1uce with u certain condition oil things,
avd also providing legal consequences. In
chapters 5s3 ana $40 there is 10 reference
made 10 the Excise law whatever. The first construo
referring such trades, manufactures or businesses
as are mon Toned IN various statutes as being strictly
Notwithstanding, lottery, prostitution, &c Tho
second constuc referring 10 the occupant and his
immediate landlord not as Inc Condition oil things APP
pear this proceeding 1t seems ~ me II would DO
unjust 10 Mold the tenant responsible Tor the act or
ac.s OF the under tenant when The law already pro-
vIdes pun shment FOR Its violation. 1t wouii be
trary to pu3lc policy to cal business 50 extensive
aud tolerated AS hs Is illegal or illegal TO such an ex
tout TO WORK forfeiture oil the lease OF innocent
lessee. II has been said ana allowed by good authority
that lessee shouiu exact all indemnify from au under
tenant and vice versa the former Tor compliance with
ali laws and tho latter as To the payment oi his rent
Now why should the lessee exact indemnity against
what the law prohibits? All persons arc supposed to
obey the laws or suucr tho consequences, and there
no aches here that SHOULD merit such severe Judg
ment AS forfeiture. must act IN thus ith
III upright intenlon 10 accomplish Just and equit-
abie eud keeping my mind's eye due obedience TO
and Respect Tor the law active sense and love
OF duty. IL Is not my Wish 10 compel Interested
to suffer consequence Of the construction
put OIL Inc sLitatc but Father attribute II to
Of Judgment win IL desire 10 render exact justice.
That beng The CONCLUSION the Court has Como To,
gentlemen OF the jury, you arc directed ~ bring IN
vordict Tor the tcnanLs
EX-CASHIER BARTOW'S TRIAL.
Tho ,ria Of Alexander Barlow, the cx Cashier Of tho
FishRill 5ank, which had been adjourned over NJ on
day In Consequence oil General Tracy's sickness, was
yesterday resumed before Judge Benedict and jury
Attorney Herrick appearing Tor tho government, and
General Tracy for the defendant
Tho testimony Tor tho government was continued
by calling MIR. Henry Bostwick, the receiver OF tho
bank, who testified that he had searched Tor tho
tilicatc from the Comptroller authorizing the organza
ton OF the bank at Flshkl but could not find 1t. Ho
produced letter, dated April 1865 showing that such
IA certificate given
Mr.. Edward n. Hale, tho government examiner OF
the bank testified that ho sent from Washington,
in June, 1877 to examine the bank; he hrst became
acquainted with Mr. Barlow In 1877; he met HIM In
tho directors room and administered 10 him the
usual oath, and then proceeded TO examine him In
regard The affairs oi the bank; Barlow seemed
tvrney then asked Witness 10 detail the
but Generh Tracy objected, ana the question was
Alien >. Apgar cashier In tue Merchants Exchange
National Bank testified that he kept The books oil tho
bank Tor several years ana that no familiar with
the bookkeeping oi tnat bank Ia reply 10 questions
by General tracy no said mat IN tho accounts shown
thcre were certain credits IN June, 1870, III the
Merchants Exchange National Bank on the National
Bauk oil Fishki there was "A credit dated June Of
81. 2O2 IS by Wimcrding Co., another OF $4,000 ny
Inc same Iii aud June IL another 81 S2,Oyl IL
THIS The witness read from copy OF the
rent sent 10 the fisnk Bank, ana aierward verified
IT, at the suggestion ui the Court by comparing II with
tie original entries IN the LOGGER oil The Merchants
Bank Tue witness SAID that any putting credit
oil that KIND III the wOuld Ue emitted to u
OH the bank al F.snk!ll to that amount
MIR. W. Il. Browning, the teller OF the Fishkll Bank,
was recalled and saIu that ho could not 1nd any DIS
count oil notes Tor Dykeman ON September 3, 1870,
The discount book OF tho bank He was asked by the
District Attorney III reference TO the fraudulent
OI the certificate. Argument followed, and the Judge
ruled at tins point That there sJllicieDt ev
dcnce 10 80 10 The jury oi fraudulent issue Of the
certificate OF deposit OF 81 600 to Mrs. Pnobo BALDWIN,
ana vi that count IA the Indictment
The prosecution rested NJ I'll point General Tracy
asked His Honor to direct acqutta tho Grsi,
third aud iour,h counts The indclmrnt The Court
said that was "a motion That must be argued NJ tue
close of the cast.
Sir. j. II. Dean the FIRST witness callcd by tho
defence. lie said hc was president OF the FIsnknl
Savings Institute that Barlow the treasurer aud
that the bank O~ncu 100000 or $500 600 worth of
government bonds; they never loaned any The
FIshk National Bank curing his years nd
ministratou as president; the savings Institution has
lost $4,000 OF inesc bonds they having disappeared
On GRO seXar.inaton he SAID mat suit pending
The recovery OF those bonds against Henry Bost-
wick, receiver OF The FIsnkiii National bunk.
John j. McCadmus OF the firm OF Wimcriing Il
Co., testified Thai he knew Alexander Barrow va tue
of