25 Haziran 1855 Tarihli The New York Herald Gazetesi Sayfa 2

25 Haziran 1855 tarihli The New York Herald Gazetesi Sayfa 2
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HTEXKSTHYG HISTORY OF CISTLE G4RDBN AND THE BATTEEY. Jadgt Homutn1! Opinion In Fall. ?VrnUOK CODKT - 8PHCIAL TKBM. J. Phillip* Phoenix, tm behalf of hirntelf and others, mgainst The Comniuumers of Emigration, Henry A. ULnklin, and the Mayor, Aldermen, 4c, of New York ? Messrs. Catting u>l i'lrry (or plaintiff; tbo Attorney General and Mr. Devlin for the Commie nlenere of Emigration, Mr. Andereon for Henry R Chokhn, Mr. R. J. Dillon (or the Major, &c., of New Ink. The oate la to be considered in two aspects: Vint, in relation to particular statutes and eonreyaacen under which the plaintiff insiits that he and those similarly niteated with him, possess aa absolute right, as owners el property, to hare the intended use of fissile Garden prohibited. Second, in relation to the general law governing the Court in interfering with par ties whose acta amount to nuisances, or tend ts such eeasequences1 endangering property, health or comfort, WMO^lJ UOHt.CO. V?viasig?*iwg ysvj as are equivalent to nutfanoes. 1. As to the particular rights of the plaintiffs as own ers of properly in the vicinity 1 The. land upon which Castle Garden stands, as well as 4J* Battery as it was at any period defined, did not pass to the Corporation of New York under tne Mont gomery charter by the grant of the four hundred feet into the river. The lines ot that grant expressly exelnde these premises. Titers wai also a reservation of Fort George "and the ground, full boundaries, and extent thereof, or thereto belonging." 2. The act of the ltth of March, 1790. in the serood seetron, gave to the corporation all the lanJs belonging to the people oi the State, within tbo limits described, as wall as all the lands within such limits claimed by the corporation, except the lands rererved in the first section The exception was the ground fronting the Bowl ing Green, end running to the i ear of the lots freattng on Pearl street, which it is here sufficient to indicate at the CtevesnmeatBouse Grounds. The recital shows that the intention was to convey Fort George, and the Battery ad jacent thereto. The corporation was to hold the pre mises "for tte purpote of erecting public buildiues and works of defence thereon, but without any power to dispone of the same for any other use or purpose what nearer and without any power of selling any part there of.' In 1791, a map was made by J. Goerck, City Surveyor, which shows the line of the Battery aa it then existed, and aa it. indeed, continued until ufter 1821. It will be noticed tnmt its general course was nearly straight, with the exceptlun of a bastion near the northerly end, which projected irregularly to the westward of the line. It will also be noticed that the whole of Oastle Garden, and of the bridge leading to it, are outside, or to the westward ot this line. This is shown upon the same map, in connection with the outline of a survey made by Budges, Surveyor in 1807, and traced upon it 3. The grant by the corporation to the gorernment of the United States, of the 17th of Noremr-wr, 18>)7, com prises two parcels of ground:?First, aa obloug described by metes and bounds of 310 feat, and 300 on its wester ly and easterly sides, and '200 feet and l'2& feet on its northerly and southerly sides. The map of Goerck, with Mm additions, exhibits this parcel distinctly. A cartful examination of the map shows that a por tion of this oblong was outside, that is, to the west ward of the limits of the grant in the statute of 1791. It was heyond the Bastion. But another portion of aach ob long was within the itatutory grant, for It comprised the Bastion, as it is shown on tke map of Goerck. Although the line# are not run particularly, there can be no doubt that the B sal ion passed under the statute. The first portion, then, of this transfer to the United States com prised one parcel of land clearly belonging to the oor tifin. and another parcel, the title to which is not r/Tks dimensions of the whole parcel may be gbly stated at 49,000 eupeficial feet; the parcel the title to which is not traced, at about 30,000. But the next clause of the conveyance of 1807 grants al ths right, title and interest of the corporation "to all that water lAt, vacant ground, and soil under water, to Pomade land, and gained out of the Hadsoo river, of the breadth of three hundred feet, lying on a course south sixty-four degrees west," adjoining the other paieel ef ground. The length into the river is left inde finite. i The habendum of this conveyance is, that the pro. miees are to be held for the uses and purposes described. Those purposea are expressed in the recital, viz.:?"For eoDstructing and erecting of fortifications fur the de fence of the port and harbor of New York." The condi tion expressed in the conveyance is, that if at any time herealter, the premises should ceaee to be ussd for the purposes of fortifications, or for any other par puses in which the public may be immrdiateiy interested, then the premises should revert to and re invested in the Mayor, Aldermen, &c., and they should and m'ght enter upon the same as of their form-r estate. 4. The attention of the counsel was called to tha statement in the Treatise upon the estate of the Corpa saUon ot New York, that commissioners of the Stats had ceded the land under water to the United States, and some searches were made to trace this cession, but ineffectually. It was observed that as the corporation did not ap pear to hare a particle o: title to the land under water, secondly described in their conveyance, It was not to bs imagined, that the United states would have been con tent with that mere quit claim of an assumed Interest. The following statutes, however, explain the history of tbo title very satisfactorily :? By an act of the 20th of March, 1807, the Governor, lieu tenant-Governor, Chancellor and others, were ap pointed Commissioners to declare the assent of the Legislature to the cession of lands on 8taten and Long Island to the jurisdiction ef the United States, for pur poses of defence. (Sess. laws, 1807, ch. 61 ) By an act of the 18th of March, 1808, the commission ers appointed under the former act had their powers extended to lands in the city and county of New fork, and to lands covered with wster in said city and county nf > cw York, and to lands covered with water in said ?ity and county, provided that the cessions to be made of such lands should be necessary for the defence and safety of the eity of New York. (Sess. laws, 1808, ch. pi.) By the 4th section of this aet, such commission ers were empowered to grant to the United States, for ths purpose of providing for the defence of the city, Mm use of any of the lands and waters belonging to the ^ie of the State, in the said city and county of New which lands shall be granted on the express con dition of their reverting to the people of this State in case they are not applied to the purposes aforesaid. {See also an act for the extending of Bridge street to the Battery, passed April 8, 1808, ch. 168.) It appears from the Kevieefi Statutes of 1830, (vol. 1, p. 68,) that a deed of cession was made by these commis euoners. dated the 6th of July, 1808, of the parcel of ground at the foot of Hubert street, and of a portion of the pre mises now in question. The deed of cession is stated to be in the Secretary of State's offioe. The boundaries of tbis cession are very particular. The point of beginning is the samo as in the re lease from the corporation. The easterly line is the earns , so In the course of the northerly line: but the depth into the river is five hundred instead ot two hundred fe-t; the length on the westerly side is the same, and on the aouthcriy the depth is 426 feet, instead of 125. We thus see, that from the same base line at the east ward, the line of the cession by the State ran 603 feet into the river?that of the corporation 200 feet. Ton latter line ran to a point upon the bridge, about one third from its commencement. The ceisioo by the State contained a proylsi in that the United States were to retain the use and jurisdiction so long aa the two tracts should be respectively used and applied to the purposes of defence and safety to the city and port of New York, and no longer. An obscurity exists as to the ground of the claim of the corporation to run 2C0 feet into the river The 8tate did not concur in it. But supposing the claim well founded, we have then the United States holding'the property under aces Mod of the use and jurisdiction, not the fee, from the Mate, for the westwardly three hundred feet, and under a transfer from the city for the residue, with a clause of revert, r upon its disuse. 6. in this situation the act of the 27th of March, 1821, was passed. The corporation was authorized to extend that part of the etty usually called fibe Battery into the river six hundreed feet, and all the title of the people of the State, In and to the hid. and land under watsr, in front of and adjoining to Mm said Battery for that distance, was vested in the Mayor and Commonalty, " to remain for the purpose of extending such Battery for a publio walk, and for erect tag public buildings and works of defenoe thereon; bat without any power to dispose of the same for any otaer sim or purpose whatsoever, and without any power ef ?thing it, or any part of it." Undor this aot, the rsvsr fi?..j right of the State to ths land under water on which the castle stands, and to most of that over which the bridge ran, thus passed to the corporation upon the tenure expressed. 6. We thus arrive at the consideration of the SMt of Congress, of March 30, 1822. The President of the United States was authorized to cause the work! to be dismantled and disposed of, and to reconvey t> the corporation the tract of land granted by them. This operated upon the parcel first described in the convey anrr from the corporation, and restored that body to the rights it possessed in 1807. The express oondittoa of the cession by the State woold have reinvested the people with their original right and title but for the net ml 1821, before notioed. The effect of that aet of 1821, was to substitute the corporation tor the State. Bat the corporation purchased the materials of Cat tit Clinton from the United States, and possession of ths whole of the promises was delivered to It by General leett on behalf of the government, about the 16th ef Jaas, 1828. (See resolution of that date.) The eity has aseitianad la possession, used, and leased it, with the woeupation of the bridge, from that time to the present, for Its own benefit and profit. 7. The operation of the act of May 25, 1812, aod that ef April 13, 1813, with .he sale in 1816, by the corporation, of the government bouoe grounds, ?nd the covenants in their deeds to Jon. Hone and others, is next to bo examined. Tbo plaintiff claims under on# of these deeds. The oov.nant la "that the wnonat grounds belonging to ths parties of the first part, ta the vicinity of the promises hereby granted, com xnoniy called the Battery and Bowling Green, shall never he appropriated by tho parties of ths first part or their successor* to private uses." This covenant extended to She Battery aa It then existed, and no further. Qo#r;k's map of 1791 defined the limits, pursuing ths boundaries of the net of 1790. The oovenant did not cover an Inch of the ground now in question. Ths Battery, as then As fined, was much to the eastward of that gonad. Cas sis Chnton?nil ths pr*uiites now In question?were in She possession of the United States, end might have boon hold by them In absolute ownership forever. I am elearly of opinion that the covenant cannot be extended to any land beyond the known limits of tbo Battery in 1818. ? The lease to Allen tor the premises in question, dated the 23d of March, 1864, comprises a parcel of ground described "as nil that cmtala pteess* penal of i eity of land situate In the First ward of the eity of Now York, wa the North or Hedson river, near ths west snl of ths Battery, and oa which the building wrested tor n fortifies Men and haiatsfsie known as Castle (Xiatea, and aow as Castle Garden, stead., but without any right of way by .arte, wantages sr other vehicles aptfn or serosa ths if J|?ttery, or say part thereof, without ths special l#art of tb? Mayor ia writing. T* 1mm to bnvo no sxelo sive right to occupy or w tho bridge 'ending from the said Battery to too Garden. except the right of tbo mt lor foot passengers, uf to bore bo right of wharf Hi on either side thereof." Tbo vnBlM, therefore, oro Castle 6arden proper, tod tbo right of way ev.r too bridge. There io ? eorooont 10 the usual form, motto malign or sublet tbo premittee without the maaeBt of the eorporm tk)D. An assent wma given by tbe Cimptrofier, on bohmlf of tbo Common Council, on the 27th of Ifmrcb, 18(6, eanc tioning tbe a alignment by Allen to Ceaklia. The duty Md power to give such assent la conferred by tbo ordl nmnce of 1844 (aee. 4 of title 4). Tbe Comptroller hoe refoaed bla eonaant to the maaignment by Cooklln to the Commlaiionera of Emigration, made by him oa the 6th of May, 18(6 It ia inflated tbat the want of euch aaaent renders that alignment wholly void. It la lopliod that by oonaeatiag to one assignment the coeenant le dtacharged. Damper's ease (4 Coke 119, Smith'* leading eaoe* 16). Brummel eo. Mcpherson (14 Voooy 173); and Dakin e?. Williams (17 Wendell 447), hare beon clOSd. Whether, aa the lest emao partly intimate#, there ia not a diatiaotion be tween^scnaitions and coronanta in tble particular I need not consider 1 am of opinion thot it ia for tha corpora tion alono to tale advantage, by re-entry or otherwise, ef any broach of the covenant. Mo one sloe can do eo Ano one among several reason# ia, that tha reception of rent alter the breach would prevent a forfeiture. (<>o*I right tb. Davia Cooper, 803.) It la etated in the affi la vlt of the ConmiMioners tbat tboy have paid rent alnce co^duSTthU bronch of the caee with the following proposition*, which appear to me to be established by the preceding review of the statute# and documents upon tbe subject. 1. Tbat the plaintiff and other owners of tbe lot#pur. chased In 1815 have no right, by virtue of the covenants in tbe deeds from tbe corporation, or otherwise, aa owners of such lota, to interfere with any use which tbe corporation may make or permit, of the premlser con tained in tbe lease to Allen, and in question in thin ease. _ 2. Tbat the corporation of the city or New York are entitled to the building sailed Castle Gardtn, and tbe material! of the bridge, by virtue of their purchase from tbe United States, In 1823; and are entitled to, and hold, tbe lee of the soil under such building and bridge, by virtue of the act of 1821. 3. That the United States did not acquire the fee of these premises by the cession from the State ia 1808, but only tbe u?e of and jurisdiction over tbe same; that this fee, subject to such right in tbe United States, passed to tbe corporation by the act of 1821; that the act of Con gress and surrender of possession discharged ana extin guished this right of tbe United States, and enured to tbe benefit of tbe corporation aa grantee of tbe8tate; and thus the corporation hold the property under the act of 1821, and according to the conditions, and npoa the terms, pre cribsd by such act. 4. That apart from tne question ef nuisance, no one but tbe people of tbe State baa any right to interfere with any uae whatever which the Corporation may think pro per to make of these premises; that persons in tha po sition of this pla'.ntifT may indeed unite in a complaint, or act as relators with tbe Attorney General, to prevent a perversion of the property; but tbe people, through tbat officer, must be parties to the action It is needless to refer to any other case than that of the Broadway Railroad (11 Iiigol Observer, 359), to support this proposition. The condition arttacbed to the grant by the State, and the purposes for which tbe land was beitowed, ware all of a public nature?concerning all the Inhabitants of the city tt Ut^Si 6. That the want ef the assent of the Comptroller to the assignment by Cooklln, if legally necessary, and not dispensed with by reception of rent, ia an objection only to be taken advantage of by the corporation itself. II. I proceed to the consideration of the second branch of the came. lat. There cm be no question tbat if the occupation of Castle Garden aa an emigrant depot would amount to a nuisance, neither tho Corporation of Now York, nor tho State, nor the two united, could so employ It. An injunction would then be granted. In addition to the eases cited, 1 refer to the Attorney General to. John atone (2 Wilson's Rep., 95, 2 Startle, 511). and to the Attorney General vs Parmentier (vol. 8, Exebq. Rop., pkii. edition):-" The Crown has not n right either it self to uae the title to the soil between high and low water as a nuisance, or to place upon that soil what will be a nuisance to the Crown'a subjects. If tbe Crown has not such n right it could not transfer tt to the city of London." An Injunction was retained until the re sult of m indictment whioh was pending. 2d. Rat few points are better settled than this:?That n Court of Chancery will net interfere by injunction un less the thing sought to be prohibited is In itself a nulsMce, and irreparable mischief will easue unless the prohibition ia granted before a trial at law. If the thing to be enjoined is not noxious of itsslf, but some thing which may, according to circumstances, prove to bo so, the court will refuse to ioterfere until the matter has been tried at law. Bat If the magnitude of the In jury to be dreaded la great, and tbe risk so imminent tbat no prudent man could think of incurring it, the eonrt will not refuse to interfere on tbe ground that there Is n possibility that the anticipate! injury Irom the noxious erection may not happen. These are tbe general rules laid down by Lord Broogbam, (Cooper's Rep.Temp. Brougham 313,) adopt ed by CbMcellor Walworth (6 Pa ge, 553) and sustained and applied in the following eases:?Rowe vs. The Granite Bridge Company, (21 Pick. 344.) Vaughan vs. Law, (1 Humphrey, 123,) Kirkman vs. Houok, (11 Humphrey, 405,) City or Georgetown vs. Alexandria Canal Company,? 12 Peter#, 92,) White vs. Cohen, (19 Eng. L. and Eq. Rep , 149.) Sec, alio, tho subject ex amlned in The Attorney General vs. The Sheffield Gas Company, (3 Do Gex McNanghtan and Gordon, 319.) While the general rule ia thus stated, it will be noticed, that In very many of the authorities the effect of tbe intended erection was an expected injury to property merely. ... The cases whl-h relate to an expected injury to health and comfort require to bo more particularly referred to, as mors applicable to the present question. The principal of such cases are the following:?Anon, (3Atk., 760,) Catlin vs. Valentine, (9 Pnige, 579,) The Burnt Island Whale Pishing Company vs. Trotter, (6 Wilson A Shaw, 949,) 8 win ton vs. Pearie, (15 Shaw Jc Dunlap, 775, McLom A Robinson's Pari. Rep., 1,018,) Tbe Mayor of London vs. Bolt, (6 Vosey, 129,) The At torney General vs. Cleaver, (18 Vesey, 211.) Attorney General and others vs. Blount, (4 Hawks, 384.) We find most of these cases to be those ef slaughter ing houses. Now such an erection Is Indictable aa a nuisance at common law, (Rex vs. Cross, 2 Carr A Payne, 483, and see Rex vs. Watts, Ibid 480.) Tbe Scottish oases, Cutlin vs. Valentine, and several others In our oourti, tr6 omd to the comment thit prtma/orw tbi trade or building to be inhibited was indictable as a nuisance, and the oourt would not permit an experiment to be made to ascertain whether untried, though appa rently efficient means, might not remove or diminish the evil. ? The Scottish case cf Swinton vs. Pedis deserves par ticular notice. The bill of suspension and Interdict was to restrain tbe erection of a range of shambles anl slaughter houses, which, It was alleged, would prove n nuisance to the property or the parties, and would pal late a mill head which passed tbe neighborhood. Tne interdict granted by tbe Lord Ordinary, to whom It was {resented, was absolute; retraining tho erection of the oildings as well as the Intended use of them aa sham bles. This was ex parlt. On a hearing he re sailed the interdict so far as it prohibited the erestion of the bull! ings, but no farther. it hen tbe record was closed, (proofs being taken,) an other I-ord-Ordinary made the interdict permanent us it was modified. On appeal from this decision, the plans by wk<;h tho party expected to remedy theevll were ordered to be sub mitted. This was dons at length, and, upon ooosiderlog them, tbe Scottish Appeal Court adhered to the interdict. Then in the House ol lords it was recognise! that the effect of the internets, as they stood, allowed the party to go on with the building. The resnlt was, that the in* i terdict was sustained, but with a qualification or decla ration which would enable the party to apply to the Court thereafter for an opportunity to try the experi ment whether the means be had devised were effectual to remove the naisance. The Court was not by the de ciee to be prevented from recalling the interdict If eo ad vised. The foundation of the decision throughout was, that a * Slaughter house in a eity was, by the law of Scetlaud a* of England, a common nuisance. In Rex vs. Ward, (1 Barrows, 333.) the Indictment wsi lor erecting and continuing worke for mtkiug acil spirit of sulphur, Oil of vitriol, and oil of aquafortis; tbat in tbe process was sent forth abundance of noisooae, offen sive and stinking smoke, whereby tbo air was Impregnat ed with noisome and offensive smells, to tbe common nnlsance of all the King's subjects resiling, As. Frosu tbe Judge's report It appeared tbat tbe smell was not only Intolerable and offensive, but also noxious and hurt ful, and made many persona aiek. A conviction wae sustained. Tbe word noisome was held synonymous with noxious, and that Included insalubrity and un wholesome ness. I think, then, that the rule declared by I?ord Hard wicke in the case cited from 8 Atkyue is to this day the gene ral rule of the oourt upon thia subject. Bills to restrain alleged nuiiMces must be for such as are known nui sances In the law. Unites they are snch, the Court will not interfere without a verdict, except In very marked and imperative cases of imminent and Irretrievable danger. Otherwise tbe parties will be left to indictmeot, or abatement; or occasionally an issue will be directed. It is impossible to say that the law has aronouncsl aa emigrant depot in a city to be a public nuisance. Its character must be established by the nature of the diets*?* of its Inmates?their frequency and*ex tent?the number of persons received?the peril to health 11 iwiag fiom their presence?the location of the edtflee as 1st large or eosnty population In Its vicinity?tbe precau tions whioh may be used, and may be depended open; an-1 many other oircuinstances psculiar to each indl vidua! rase. ' 3d. It beeomvs therefore necessary for me to sx im ee tbe particular nirvumstanoes appearing upon tie affida vits and documents presented. The Mate has sonslderwd the regulation of emlgrst'oa into its limits as of inch importance as to call tor tbe apointsnent of a particular Board to superintend It. * act of May, 1847 (ch. 196) created tbe Communion ere of Emigration suck n Board, and provliei a food by appropriating tbe tax of f 1 60 for every emigrant for whom a bond was not given, to meet the expenses In cur red for tbe support of the pooramong them la 1948 tbetr authority was enlarged by the Legislators la the act of April 11 of that year, asd again by tb* act of April 18, 1860. It Is plain that tbe prominent object of the Legisla ture in such an organisation was to rslisys the cltios from tbe burthen of supporting tbe multitudes of the in digent and sick among tho emigrants: to afford tliem means of support or restoration to health, uutd tho op portunity of sustaining themselves was offered; of shsl taring the unwary from the infamous (rands whioh were constantly practised upon th*m;aad of guarding against the propagation of dangerous diseases with which they might be afflicted when they reached theee shores. Among other provisions for the accomplishing these, er some of theee objects, the Commir doners were au thorised by the first section of the act of 1848 to lease or purchase suitable docks or pters in the eity of New York, nnd to erect necessary encloserea thereon for the oxclnoft* nse of loading emigrant aiton paaasngsn: bat no docks or piers could be pnrchased or leased without tho approval or constat of tbo Common OmMI A Ueonoowno to As gt von on certain conditions, to propyl* two of lighten pr steamboats, to fooelwe passengers frem tk? tmmIi and land th?m oa tha selec'sd piers, ?ad a pen*My waa imposed far landing them ipw aay ether pier# ar *kir(?. Tha aet at April 13,1836, directed the Cemm'ssiensM to designate mm ana placa in tha eity for tha laading of ike passengers; tad the aeTenth section provided that thee eh ail have authority to purchase, leal a, aad occupy each wharves, piera, aad other aeoemmolatione In the city of New York aa aaay be aeceaaary for the accommo dation of emigrant passenger* for the pnrpeaoa of land' ing them. The eighth eeetion placet tha aethority la the Health Officer, to giro notion to maatere and ewaera to land tha passenger* at tha pier or places thai desig nated. The principal difference between the powers thug eon feired, and those granted in the act of 1848, la that tha consent of tha corporation la not new made necessary to a purchase. These provisions clearly indicate the sense of the Le gislature and of the Commissioners of Emigration, on whosa application they were obtained, that the selection of particular places far the purpose of landing emi grants was of Importance to enry out the objects in view. 1 hare carefully examined the affidavits now before ma, and I consider that they establish beyond any rea sonable doubt these points :? 1. That tne selection of Castle Garden eaables tha Commission*** mora effectually to guard the emigrants from frauds and imposition. That it is of great a Iran taga in facilitating their dtisperaion throughout the country; and of giving tbem the hoaetlt of the counsel and aid of the several societies specially lormed in watch over their comfort. 2. That tha emptoymeat of Castle Garden for the pnr pose of a re-examintt ?n ia of manifest advantage, in Its tendency to secure the health and eomfert of tha ami granta tbemstlvee. The judgmentand experience af tha Commissioners, confirmed by the affidavit of Dr. Harris, formerly deputy health officer, Dr. Oebora, and other " i? n??il nf Cvrnm Curtis. iormeny urjiuii uwu. ~ ?, _ physicians, of Captain Crabtree. and of Cyras Curtis, (trmeriy a Commissioner ef Emigration, establish this. 3. Ibe bringing together all the emigrants whoia seasts have escaped detection at Quarantine, into * *1? 1. oaa atsesses dbtb escapwu ?.* , __ place, such as the premise* ia question, ia decidedly mere likely to avert the propogation of diseases in the eity at large than the present system. The effects of landing the passengers at different points?of immediato ly crowding tbem into filthy boarding houses -are stated in the affidavits of several of the experienced physicians and others, and tsar every appearance of good sense and truth. 4. The question of the deterioration of the value of property depends chiefly on the settlement of the ques tion next discussed, as teths effect of the proposed use of the Garden upon the health of the neighboring Inhabi tants. As far as any distinction exists, it Is sufficient to ray, that a stronger case must b* mad* for a* in junction than in cases of threatened injuries to hsaKh. nb?n a nuisance it established aad abatsd by the ver dict of a jury, the Injury to property will be removed 5. In relation to the decision in Brown vs. the Mayor, Ac., (3 Barbour, S. C., Rsp. 264,) I may say that a ease was there mnde by the plaintiff, and not successfully ro pe lied by the defendants, widely different from the pro ses t. 6 The remaining and leading question is as to the extent and Imminence nf the danger from contagious or infectious diseases, to the inhabitants in the immediate vicinity, represented by tbs plaintiff. The distance of the Garden from the nearest habit* tie? Is about five hundred feet The intermediate space is open ground, with a free ventilation. I must confi l i in the statements of the Commissioners, that they me*.* to prevent the emigrants from intruding on the Bitter/ grounds, snd I see no difficulty in their accomplishing this purpose. Disregarding the long list of depoocnts on each ei le, wbore want of information upon this subject robs their opinion of weight, 1 have given my principal attention to the affidavits of the medical gentlemsn. If the rustic rule of decision, numero non ponder t, was applied, 1 find an overwhelming number oa the part of the defendants. It Is or course biynud my power to estimate the relative weight of character and qualification. But several of the physicians on the psrt or the defendants are now, or have been, in official situations which entitle their opinions to influence, in dependent of comparative professional eminence. Among these are Dr. Hsrris, formerly Deputy Health Officer, whose affidavit merits particular notice; Dr. Sterling, Physician at the Marine Hoepltal from 1848 to 1863, and Examining Physician of the Commissioners since that time: Dr. Hockwell. Health Officer for four years, and now Resident Physician of city and Agsnt of the Boird of Health; Dr. Miller, the present Health Commissioner, and formerly member of the Common Council and on the Committee of Public Health; Dr. Fay, Deputy Health Officer for three years prior to the summer of 1864; Dr. Cox, Visiting Physician to the Hoepital of the Commis sioners; Dr. Thompson, Health Officer of the Port of New York; Dr. Roth. In the employ of the Commission ere at Quarantine: Dr. Martindale, Deputy Health Officer of the Port; and Dr. Vacbe, Physician in Chief of the Marine Hospital, and for five years Resident Physician of the city. The opinions of so large a number of responsible offi cers and experienced physicians are in my judgment de cisive. I attribute more than mere personal Importance to the oaths ot those who have bsen set apart by the public to watch over the health of the city; whose ex petit nee snd constant familiarity with the habits aad diseases of emigrants mark them as bestL qualified to speak with authority; and whose prejunced or even hasty judment involves, not merely the impeachment or their fairness and intelligence, bat the violation of a solemn duty consigned to them by the public. All these, with entire unanimity, state that the apprehen sions of the spread or contagion from such a use of Castle Garden ss is proposed, are groundless. 7. Another consideration is, that the Common Council of the eity, as conservators of the public health, may abate every nuisanoe; and, if experience proves that the evils and dsDgers anticipated by the plaintiffs are in aay degree realised, they may be lmmedlwtelyxemoved. The powers of our Corporation are ae extensive as those of tbe municipal authorities of Boston, or of Aloany; and such is the rule prevailing there. (Baker vs. Boston, 12 Pick , 184; Van Warner vs. the Mayor of Albany, 16 Wendell, 262 ) By the act of I860, (cb. 276,) tbe Mayor aad Common Council are constituted the Botrd of Health; and by section 2 of article 1, title 3, they have full au thority to abate all nnisaucoa within the city. I have given to this motion the care and study Its im portance and interest demand, and the result is a convic tion that to arrest the plan of tbe Commissioners, full as it is of so many undeniable benefits, upon the evi dence now before mo, would bo a raah and unwarranta ble exercise of a power salutary only wben wielded with caution, but a formidable and mischievous engine of wrong when exeitsd except upon the mandate of imperi ous necessity. The motion for tbe Injunction must be dented, and tbe temporary order discharged, without costs to either Olrlo and Mississippi Railroad?Another Mcttlng of the Board. [From the St. Louis Intelligeneer, June 20.] On last Monday there was another msetiog of the di rectors of the Ohio and Mississippi Railroad?the first that has occurred since the 6th Inst., on which day were executed the note to Page A Bacon, and the deed of trust, that have since attracted so much public at tention. At tbe meeting on Monday were present two directors from Illinois, Judge Breese and A. Kitcbell, Esq , and Sam Gaty, of this city?three members who were not present at the meeting on the 6th. The transactions of the board on the 6th inst. were of course a subject of consideration: snd after full inquiry, and review of the proceedings of the 6th inst., and all the successive steps that have since occurred, a resolu tion was offered, ratifying the note to Page A Bacon, the deed of trust to aecurs its payment, and the possession taken of the road, by the trustee, for Page A Bacon's be nefit, in default of the payment of the note. This reso lution was passed unanimously?Ayss. Messrs. Garrison, Vice President ; Kitcbell, Belcher, Brotse, Gaty anl Aitxsnd-r. JSaya?none. The following is a copy of the preamble and resolu tion:? Whereas, This board, on the 6th June, authorized aad crrected D. R. Garrison, vice-president of this company, to execute to Messrs. Page A Bacon the promissory note of this company for the sum of 61,168,461 61, being the balance then due from this company to the said Page A Bacon; and also to execute and deliver to Joshua H. Alexander a deed of trust upon the lands, road, fran chises, cars, machinery, and other p-opcrty of this com pany, in trust to secure the payment of said note, and in default of payment of said note, according to its terms, tenor and effect, to enter upon and take posses sion of the road, Ac., as in said resolution is mora parti cularly explained. And whereas, default having been made id the payment of said note, tbe sail trustee, ia pursuance of the authority conferred by the said deed, bai taken possession of the said road for the uses there in expressed: there:ore, Resolved, That the eald note, deod, and possession thereunder, be and are herwby ratified oy this board, and that the several officers and ggsnts hitherto In the em ploy of, and accountable to, this company, be required to aeeount to the truetee, according to the provisions of said deed of trust. Judge Brveee moved tbe following amendment, which was accepted before the rote was taken :? Judge Breeae's amendment accepted by the mover. It being si press ly understood that the several outstanding just claims of said officers, agents and other* wbo have been in the employment snd aeeonntabls to said compa ny. as also those just claims for labor and materials yet outstanding and unpaid, are to be fully paid and satis fied a* speedily as possible. It will be seen that six of the ten directors of the 0. A M. Road were present on Monday. Those absent were Mr sirs. W. H. Aspinwall, ef New York, (who approves the action of the board.) Chas. P. Chouteau, of this etty, (wbo is aald to do the same,) and Col. O'Fallon and Henry D. Bacon. Thus there will be found not only a majority Of the board officially approving the action of tbe 6th inst, hut a far greater unanimity in srapprovng, than is often found in ouch a number of directors in do:ldlng a matter of such vast fmportanoe. And this result la a beaulful commentary on the gross and infamous libels uttered by a portion of the St. Louis press on Henry D. Bacon, one of the noblest and most useful citlsens that has ever lived in St. Louis. If loud mouthed slander, snd pointed libel, and dii graceful de famation. could have broken down and bullied him oat of the jnst earnings of years of toll and m total suf fering, such aa would have crushed the pigmies that ut ter vain reproaches against him, Mr. Baoon would now be a ruined and hopeless man. But thanks to his own proud and defiant spirit, to his Intellect, and to bis nerve, snd te the devotion of faithful friends who clung to him all the soore closely, because he was bittarly per secuted and maligned, Mr. Bacon Is triumphant and se cure. His success in the Ohio and Mississippi Railroad will retrieve the fortunes of hie honne, and restore him to a high and controlling position in the business of the Weet; while the road itself wiH remain, through all time, a noble monnment to bis energy ana enterprise? for which the people of tbe State of lUinois, no lees than of tho city of fn. Louie, will hold him In gratsfnl remem brance and lasting honor. The Turf. OtnmuOMmm?Tnotnivo? June 20.? Match 1600 aside, mile heats, best three fn fire to harness. I. Woodruff's br. eon Honest Quaker 11 Wss. Bounders'* skunk mar*. VJ Track very henry- The mar# distanced in second heat, for foul driving. Tlsee-6 66? 3 06*. THE SCHUYLER FRAUDS* ??parlor CnuUOtaeral Term. Before Justice Oakley end Hon. Jadgea Campbell, Boa worth, Hoffmen end Sloaeon. IMPORTANT DECISION OF THE OOCBT AS TO THK LIABILITY OF THS COMPANY. J CUB 23.?The Meckwaiot' Bank u*. The Neio York and jVcto /fawn Railroad Company?The Oourt rendered elaborate decisions, affirming the judgment or the court below?Judge Campbell alone dissenting. OPINION OF JOTfll SL0B80N. The olelntiffe elelm to reeorer. ea the halders of the certificate pledged with them by Kjl*, permit a trenefer of it en their hooka, Ohoreiy.ee th-y eUete the oertiAeete ia rendered unavailable end valueieM in their henda. That the certificate did not repreaent genuine stock, but that the the charter was fulL end in the henda of bona fi d* hold . conceded eud it ta elao conceded that it wea is sued foVTn unlawful purpose, e.d that the eot of taen iae it wea a iraud on the pert ot Schuyler, and that it loiaeued tor hiaown ptirate benidt. .The_pl*in. tiff* do not claim that it wa* competent for the de.end ,, their own art, ot by the act of their trans er agent, to increase the number of theU original capital, or^the number of aherea into which it was dtrUed ; nor do theyaacribe to this certificate any such effect, nor claim that the defendant* wore bound to, or had a right to issue a genuine certificate spurious one. if doing ao would cause the stock to ex ceed tbe legal limits ; end they therefore concede that the defendants had a right to refuse to do this, and weie not bound to admit them *? partners, to change the statute provision aa to capital, e? thi par value of shares : and in the view which I have taken of this c ise I shall assume that this position la the sound one but they claim that for this refusal the defendants have become liable to make to them pecuniary cempen nation for their lose, precisely aa they weuld hare been ob'iged to do had the stock been genuine. (I>?uny vs. Manhattan Company, 2 Hill, 220; Commercial Bonk, Buffalo, re. Kortiighl, 22 Wend., 348 ) The the action is, that the defendants are bound by the act of Schuyler, issuing this cert.ficate, though it wasi an abu-e or his powers and a pure fraud on his part, and that the plaintiffs are entitled, as holders thereof and by virtue of its terms, to be admitted aa shareholders, or if that he impracticable, aa creating an excess of cap ital, that thay are entitled to pecuniary indemnity from the deleudenU, from being deprived of a right which the certificate on it* face confers rfpon them. It is not In form an action to recover damages against the com pany, on the alleged ground that their agent in the courte of bis business as such, had committed a fraud by which the plaintiffs baye been injured, and for the commission of which fraud the defendants ought to re spond, but it rests on the assumption that the compa ny ia, under the circumstances, bound in law by the act, as though it h?d been their own, notwithstanding it was an act in abuse of the power# ot Re agent, and which the company Itself could not rightfully have done, and the question presented by the action is, whe ther the defendants can be bound in favor of a party dealing bona fide with their transfer agent, (which the plaintiffs confessedly were.) by an aot of his which they tbemeelve eould not rightfully have performed, nor rightfully have deputed to him the power to perform, but which he bae in fact performed while acting in the discharge or his office aa transfer agent, for the perfor mance of which he had general powers, and within the apparent limits of his duties. To make out a right of recovery in this action, on the cause as made by tho plalntifls.lt is Incumbent on the plaintiffs to eetab lah the affirmative of this proposition It is a question ths solution of which depends, after all, on the correct ap plication of a few simple and familiar principles, and were it not lor the adventitious importance attached to it from tbe stupendous magnitude of the general fraud, of which the case at bar forms but an incoaeldere'iie part, and from the vast pecuniary interests to be affeet ed by the deci ion, it would not, in my apprehension be considered by the profession aa a question of very extraordinary difficulty. That the company itself could not, without the sanction or the Legislature, have under the circumstances right fully issued this certificate, treating it as the representative of stock; that is, could not have issued it without an abuse of their lawful powers under their charter, may be conceded, but it is nevertb- less true that they had the power in fact to do the aot, as one coming Within range of their corporative powers, though in the particular instance it may be unlawful in tteeif aa contravening tbe intent of the charter. It is its capacity in fact to do the act, under the powers con ferred upon it by the oharter. which, in relation to third partiee, becomes of essential importaoee in determining the obligation of the corporation, let it be supposed that this company had never employed a transfer agent at all, but that ?J1 its certificates were issued by the direct action of the hoard itself, and that the one In question bad been issued under a resolution of tbe board and with the corporate seal affixed, though the act, in ?o far as it oould operate to create new stock, or give to tbe purchaser the rights of a shareholder, might he a clear abuse of the corporate powers of tbe company, and void, can it be doubted that, in favor of a bona fide hold er of the scrip, who hae parted with the value or credit cf it, the act would be binding on the corporation, and entitle the bolder at least, to an indemnity at their " hands I The act, though not a fraud on the charter, would not be a nullity, nor necessarily void. It woule ?till be a corporate act, which the defendant* would be estopped fiom denying as againct an innocent partj wbo hsd dealt on the faith ot it. It la true, that In on tain cases, a corporation la not estopped from denying ] that an act npon wpich a claim against it was founded was unauthorised and illegal, but the rule has no appli cation to a case like the present. (Palmage t*. Peel, p. 8, golden, 328.) It applies wheretue corporation has done an aet in clear exeess, or In violation of its charter or legal powers, and that in a transaction In ehlch the party with whom it has dealt has notice er knowledge of tie iUeg*Uty of the act. If this be true. I do not perceive in wlat re pect the act differs by beingd?n? by tbe agent of tbe corporation, it being conceded that such agent had full powers in that particular bustnass, and that the act was done while ostensibly within the limits, end in the performance of his legitimate duties. As transfer agent, the power* of Schuyler were as large, fa respect to the keeping of the hooks and the issuing of stock certificates in the city of New York, as were those oi the Board of Directors itself. The whole duty was devolved upon him, and every act done by him within the scope of that duty was, in judg ment of law, sn act of th# Board Itself. Nor does this conflict with the rule that where the agent exceede er abuses his powers the principal hae the right to repudiate his acts said hold him responsibly for tbe consequences of hi# conduct, since that is a rfgo. which exists between himself and hi# servant only, aui which in no way affects the rights of strangers as against either. As transfer clerk, Schuyler stood in the position of a general agent, that is of an agent entrusted with tbe entire buslnees of that department under the rules prescribed by the by laws and regulations of the Board of Directors. He was held out in this capacity to the world, and 'n the business of transfer of the stock or the company, the public dealt with him and him only. Within the limits of that employment the public bad the right to regard all aete done by him as rightfully done, so long as they had no reason to suspect to ths contrary. While acting within these limits, una in his ehersctsr of tiansfer agsnt, and in the performance of that very bu siness, bis acts were binding on the coxiptny, without showing their assent or participation. (Parsons on Contracts, p. 41-62; Story Ag sec. 462; 15 Bast. B.p.42 ) There would be no eafety otherwise in dealing with .. ... ? A_ l-il.iJ.a ta a i (I * Kv thfl men wvtAivi wd ?,vv. , ?,, . ? . corporations, or private individuals acting by the agency of ?there. This rule applies as well to acts done in freud of th# rights of the principal, us to thus* right . ?? ? *" ? i - - 4VaBU wha nA nAnnnt. ill tHl in rreua oi ids nguw im e* ?? ? ? fully done, otherwiee there would be no benefit in the rule itself. It is a rule founded in the common sense of rule it sen. it is a tuw >u , ? right in mankind, end adopted as fundamental because in itself right and necessary for tbe protection of the In nocent. It is irus, the party who claims the benefit or it must himself be not only in fact, but in contempla tion of law, free from any participation in the lraud of the agent; that is, he must neither be a party directly participant in the fraud, nor Lave actual notice of t, nor be put upon inquiry by the suspicious eh*rae;er of the transaction, but these conditions being found his security is perfect. There is no pretence that the plaintiffs here had actual knowledge of the fraudu lent conduct of Schuyler, nor was there anything in tbe transaction to put them on inquiry. It was the ordinary transaction of a loan upon stock security with the usual assignment and power, to effect a trans fer and in no respect different either in the character of the papers or ot the transaction Itself from probably a hundred similar esse traseacted m the street in tbe asm* etoek and on that vary day. But It is said tho plaintiffs should have investigated the title to the stock before they advanced their money?that they abould have ascertained, by a resort to the books or by inquiry at the offioe, whether the statemeat In the certificate wes true, and whether this certificate had been issued upon a surrender of a former oertlficit* representing actual atock in compliance with the regu lations and by-laws of the Beard, and it is contended that they were invited to this investigation by the cer tificate itself, and that they had the means of informing themselves or the truth of the case, and are therefore not in the position of parties entitled to the benefit of the rele in question. It is a sufficient answer to this objec tion to aay, that the finding at the Special Term estab lishes that "the plaintiffs made the loan in good faith, and had no reason when thay received the certificate to suppose it was not genuine ," but it may be added that regulation!! in respect to the transfer of the shares upon the books of the Company made by the Board, under th* auihoilty of the charter, are provisions Intended for the security and benefit of the Company itialf in tbe pay ment of Its dividends, and determining who are ln'itled to vote at the election of its officers, and for the purpose or ascertaining tbe psfaw* fable for assessments im posed en the share*. Tfce Me to the atock as bstwisn th- seller and tufa*, *? net adfccted by these jurovl ions, end die s?it?faser baa a right to assum?Th?t the certiffiuCe jhmgiasafai actual stock, and tuat th* Company, ifaane flhnfaesa it is has done Its duty, In feeing tbkt the 4B ^vtifioate has been duly surrendered before the 'Issuing of the new. (Case or Bank of Ken tucky, 1 Parsons1 Select Eq. Cases, 247; Bank of Otica r? Pmalley, Cowsn, 770; Bank of Buffalo w. Kortright, 22 Wend. p. 362.) Moreover, no person other than a stockholder l??s aoy legal right to an inspection of the books, and rntclit properly bo dsnl-d the privilege, If asked for. Neither would the books be higher evidence of title than the certificate Itself, since both are under tbe supervision and control of ths same officer, and If the purehash hae no rights unless the stock be in fact gi notne, it would be necessary to trace It to its sourM, a matter of grsat difficulty, If not In many iostauoe* Impracticable. It may bo conceded for the purpose of this argument, though tbe easo doe* not find that feet, that lbs books woatd have shown 85 shares of ths afaek to be standing In ths name of Kyi*. Hod the pUlatiffs been permitted to laspeet the books, and have &e?*T** ed the fact, would they have been more pratectedthen they are niwf ^etSigh? a^horlty a. evMwce of title would tbe entry on th* hook made by the aam* CVfafald thiyPwtu^be? (21 j^Unee qf the transfer of rtafih would be Introducing * rula of ineoavealeao* utterly *t vat with th? neoe-st toeeef builMM, and dee tractive of all traneectioas in flock, u w?U an rolaooa to tha value of that ibmI<i of ?rot/artjr. I have loosen of Hchoyler aa hav.ng authority to moke taata centiflestes. Tha Judgment at tha isedel tar* daaa not Dad tkia aa a fact, the br l?n. toianEw an thia paint: hut the answer of tha defeodaotnadiui tkat ba wan duly ap pom tad tranifar agent of tha Ooa nany. and aa such had charge of tha transfer hooka, and tha right to issue certificates upon a transfer mate bv a real owner of the stoca. This admission la all that is accessary to tho present question?the qualification tbns put upon the power in the pleading being only the construction given by tho defendants themselves a* to the eaniea In which it might bo rightfully exercised. There is no distinction in tho appUcation of tee prin ciple* to which I bars referred between tho case of a eoroorai ion and that of an Individual. Both are aqual J?7v .* of their agents committed in the eour?? *' their employment 7 Ang. k Ames oa Core. Bank; Btory on Ag. see 308 ) By holding him oat to * wo*, clothed with a certain authority, and In viting thetract and eonfidonce ot tho community to ?i?k1?ii,nCK Cfp*.ci^' Principal in effect uudertakee ?* **** him iB K<xxl faith, that his a:U at* rlghtfuBy done, And that he wiU aUnJ by the Inno centdealer and see him protected, n Parsons' Select Kq. Cases, at p 248.) The act of tha agent shall he ttaatedatthe election of tho injured party aa tho act of tb* principal, for which he is liable, and not aa that of the agent Individually, for which he alone would bs responsible. The fact that the act ie one which da frauds the principal blmaelf, and ia a gross abuse of the agent s powers and ia done without the assent of the principal or even bis knowledge, or against his exp-ess not communicated to the party deUinjr with him, makes no difference In tae application of the principle, which has its foundations in the 721* necessities of jnstic* aa between men. (Story on Agency, see. 452 ; Futer ve. Es sex Bank, 17 Haas , 607.) It is Ira* that thla act of ochnj ler was one never contemplated in bis appointment, nor was he appointed to do what his principals could not rightfully do, bat that makes no difference in the appli cation of the principle. He was amployed to do lawful and proper acts, aa all agents are in oontomplattonoflaw, and It was in the execution of the powers of that lu fnl employment, and in doing an act which upon Its face In itself was lawful and within tho express limits of his powers, and an act of the very description of thoso which he was appointed to do, that he committed the fraud. To allow the principal to escips responsibility at on a distinction of this kind, would be effectually to shield him In every Instance of an abase of power on the part or his agent. The ease (s totally unlike that cla*fl of cases in whleh a corporation undertakes to do what it is prohibited from doing by law or by its charter, and has therefore no legal capacity todo, or to that clan of cases in which an agent, though acting at the tuna in u 11n,aBter'* employment, undertakes to do an act wholly unconnected with that employment or the bast ' Wj agent, and for which he alone is responsible ; but it is the case of an abnse of a lawful power by an agent, lawfuBy appointed by a principal authorized so to appoint, and in the exercise of thie very lawful au thority, and in the very toims and within the very limits of his powers and according to the custom of hia office. (Vanderb lt vs. Richmond turnpike Company, 2 Com*., 479.) A ease cannot be conceived in which it would be more difficult for parties dealing with the agent to die cover a fraud, or m which they would be lesa put upoa inquiry k- -?*WI 1??-?--? *? ?< - ? ? - allow 1" that the ?Ecui nao. oy committing such a fraud, exceed ed the powers of his appointment, or done what he was never appointed to do, would be effectually to shield him In every instance of an abuse of power oo the part of his agent. I consider the ac< ion as virtually upon the certifi cate, and that that instrument creates a binding obligation on the defendants, which they are precluded from deny ing. a# against these plaintiffs, to be their act?the same having beeh crested by their lawfully oenitituted agent, within the scope of his legitimate powers, and In the very exerciee of them, though In abuse of them: and that.though the defendants may not be able, by retson of the limitations Imposed by their charter upoa the amount of their capital and number of their shares, to admit the plaintiffs to the rights of stockholders, by permiKixg a transfer of thla stock upon their books they rre not, on that account, at liberty to repudiate the act at tha act of tba corporation, but mutt maka compensation to the innooent holders of the certificates equally as an Individual who has undertaken to do an act which he finds himself unable t? perform and whose default in performance has caused an Inquiry to another would be bound to do. The rule of damage lu such a case Is the damage actually sustained by the fraudulent act, which in this instance would be the amount loaned on the credit of the certificate; and as that largely exceeda even the par value of the stock, * adoPtad bJ the special term cannot be objected to The judgment At the special term should be affirmed. ABSTRACT OP OPIHION OP JUDGB HOFFMAN. | Judge Hoffman delivered a very long opinion, of which I the following ia sn abstract:? j The results which I have arrived at, and have endea. vored In this opinion to sustain, may be embodied In the following propositions:? 1. It is impossible for me to conceive any ground upon which any responsibility can be fixed upon the company which will not depend upon or arise oat of the certifi cate issued to Kyle, and deposited with the plaintiffs. That certificate was either a contract made by the com pany, through its agent, or a representation of an agent, that the facta stated were true, or a guaranty by the company that Sahuyler'a representations in it were true, and an agreement to fulfil them Interpret it in any manner whatever, it has the clamant of a contract? a declaration that Kyle was entitled to an interest in the stock, and an engagement to permit a transfer and admission, upon compliance with certain terms. In my judgment, then, this action is founded upon the certifi cate, and such certificate comprises a contract. The action, therefore, rests on contract. Ther* ia not in the complaint anything at varianoe with this view. 2 That thia contract contains three material particu lars. First?That Kyle was entitled to eighty five snares ef the stock of the company. Second?That the capital stock was three millions of dollars. Third?That the nominal amount of each share was one handred dollars. Fourth?And that upon the production of that certid cate a transfer should bs permitted to the holder upon a J?*0*,1! That such a contract would be literally, fully and legally performed by the company allowing a transfer to the plaint-lis on the books-ad mitting them to the rights of voting and all tha otkor privileges of corporators under the charter?ant by re cogn'sing the fact that tha interest and share of the {OaiaUffa in the capital and property of the company was sight thousand fly# hundred dollars oat ot three millions of dollars. That all the gsnulne shares be reduced by a rate or per centage whleh would yield thia sum. That this was the import, and this tha extant of tha oblige Hon fixed upon the company, in favor of the pteiatitls by the possession of the certificate in question; and thit irrespective of any prohibition, express or implied, in the charter or any statute, tho stockholders could hayo entered into inch an engagement aid bound them wives by it. That bad tba defendants fulfilled such contract and admitted the plaintiffs to a transfer an the books a? demanded, it would have been the duty of tho directors to have ascertained the share# or genuine stock and its holders, and to have Adjusted tha proportion of the ln terists of the Utter in the stock of the company, by abating from each share a rate or pw centage which would amount to tho snm of eight thousand fly* hun drtd dollars; and which, If this wore tha only case, would bo about twenty eight oonts and a fraction upon oa>h share. That if the directors refused or neglected thla the plaintiffs could have filed a comp-aint (and as the facte exist on behalf of themselves and all others stmt lnily situated) to compel it If the proportion of the spurious stock to three millions admitted it; if, for exam ple, there was one million five hundred thousand dollars of such stock, as stated In tho answer, a surrender of one half of tbe shares of eath genuine holder, and taking new certificates for half, would effect tbe object. But If this method should not be practicable, or be inconve nient, then an abatement of the nominal value of each Ahato by a rate or per centage sufficient to eover tbe amount of the spurious stock would be practical and effectual. That tber* is not sufficient ground to sup pose that a discrimination of the stock cannot be made so as to carry on this method of doing justice to all. That in reUtlon to the effect and operation of the char ter, it is not to he conceded that the increase of the number of shareholders for tho purpose of voting or participating in the corporate privileges could work a forfeiture or be an utterly illegal act towards the Stats and that if these holders of certificates were adm ttea upon a basis aa to tb* amount of thtir interest, which should leave the capital prefisaly the same, the rule of ,l'i blic policy which dictates a limitation of eapltal would not be Invaded, and tha act would not b# unlaw ful. And lnitly, that this was a question for the State of Connecticut, or the courts of that State, to determine and for them alonn. That it oould not form a juii ground for determining the question between these claimants and the holders of unquestioned stock. 3. That Robert 8chnyler had received from the stockholdersi such an Apparent unlimited power as ena bled him to Mnd the stockholder! to perform the etipu lotions contained in this certificate, although falsely and fraudulently issue! by him, provided the claim upon such certificate Is asserted by a bona pk holder. 4. That thorn is no evidence to show that Kyle wae aware of the frand attending the Issue of the stock, or that he had not stock to hi* aredit In the book:-! That although as between himself lud the company the poesemion of the certificate beforn It was pledired Sit# no right to Kyle, yet after the pledge to the plain fin be had an equitable lien npon it to eevMira him against responsibility on hi* note, and would have bad a full right to it, had he paid such note. And that even If such certificate was of no avail in th hands of Kyle, tbe rights of the plaintiffs under It, be ag bona fide holder*, would net be affeeted by any thing which would have rendered It ineffectual In the hands of Kjle. 6. That tbe extent, foroe and nature ef the obligation Imposed upon the oompsny was such as before stated, and no other. That without a demand and refusal to permit a transfer, no possible right of action would vent in the plaintiffs. Had the transfer been allowed, anl tbe pecuniary Interests adjusted upon tha principle stated, All claim of the plalatffs would have boon satis fled. And hence that compensation in damtges is to be given exclusively on account of th* refusal, and on no other ground whatever. That under the oireumitaucei of the present caee, th* court is not at liberty to carry out what appears the true and equitable relief, by de creeiog a performance of the eon tract thus interpreted, and that the only measure of damages whleh tho cue*! aa presented, admits of, Is the market value of the atoik as it has been found; and hen?e, that the judgmmt must be affirmed. s ABSTRACT OP JUDGI bos worths opinion. Judge Bneworth then rendered a very elaborate opin ion, snd concluded by saying:? iJITVk ?ltlon ^ ?? th* Aasumptlon, so '? " ?be right to be compensated in damage Is ooneera I1? assurance that Kyis th? "?<><* it* certificate represented stood to his credit on its books. Tb* complaint state* that th* defendant refuead either to permit a transfer of It on Its boobs, or to pay tb* plaintiff* the advance, or any part of the advance, mad* bv them on th* faith of th* Mrilfi. eatsi of Kyle's ownership, alleging that It waa fraud a ? Watly Issued, And represented no genuine stock. The plaintiffs, if they recover at all, da not recover nakedly OB the ground that aueh a fraud bus been committed, !S? r^>T'r. u All, not b*CHM the certificate it? net wpuwnt gtnnlmv atock bat be unia, nltboagh It d. ea not npraaent ,-enalnc .lock, tho defendant it concluded under all the facte and circum ?tencen ef 'he c?ce by the act of it. tranter agent, and what eu den# by h te m it# net. Thi. action i. net af fected by the enact pie which controlled the decieten In Bodge# agaiett the city of Buffalo (> Den to, 110); McGregor against the official manager of the Deal and Dover L Railway Company. ( Id big. and Exr. R ISO), and In other kindred ca.ee. In tko?e action, the plaintiff was party to a contract which the defendant had no power to make. The act of incorporation being a public act, the plaintiff wan pre .umed to know the extent of the defendant'# power., and that the contract to which he woe a party woe be yond the soope of the defendant', authority, end, there for., illegal and void. Neither la it affected by the ralo applied to that elaa. of caw. in which the OMignee of a contract #ne? a corporation, and the contract, thongh negotiable in ite character, i* upon it. faoe on. which the corporation i. incompetent to make. In all caw. of the former character the contrasting party, and in caaej of the latter, every party into whose heads the contract may cem. in judgment ol law, h*. notice that it i* ille gal end Invalid. In the present com. there ie nothing on the face of the certificate or in the circunutanoee nnder which the plaintiff, took it. to induce a .u.picion ??t the agmt bal been unfaithful to hi. principal, that it wa. not a proper corporate act of the do ftcdant, performed in the rightful di.cb.rge ?f ita duty. One teaing a bank note in the Ordinary couree of bneinea., obich bad bean fraudulently La med by a cithier, after the whole amount limited by law baa been i.med and wa. in circulation, would hare a. much ground to suspect that the 1/suing of It woe nit an honeat corporate act. a. the plaintiff, had to .up pore the issuing of the certificate la question wu not inch an act. (Jen there oe my doubt of tho right of the holder of euch a mil to recover upon it, if the bauk re fused (o redeem itf le there any more doubt of the right of the plaiatiffe to recover in thi. can*'/ I think the judgment should ba affirmed on the grounds ? First?That in ireu-ng the certificate, Schuyler wa. acting within tba mope of hi* power, aa troaafer agent, and the Issuing of it wa., in judgment of law, the act of the corporation hecond? That by entrusting to bim that department of business, and holding bim out to the world a. the officer by whom the can pany would transact it, it represented bis official acta to be entitled to credit, and became re sponsible for hi. fld.lily in that employment. Third?That any person to whom certificates of stock issued by such officer in tbe usual form, and authenU eated by bim In tbe usual manner, are offered fer eale, Is, through tbe en, assured by the company that the facts are ae they represented them to be, and la as much authorised to purchaae, relying on the truth of that representation, as the merchant is to sell upon the representation of a third person, that the sendee is wer thy of credit Fourth?That a purchaser in good faith for value, and in tbe ordinary coarse of business, of suoh a certificate, although it proves to have been fraudulently lamed, le entitled to recover bla damages of the company, if they rt fuse to permit a transfer of the stock, or to reimburso to tbe purcnatar any part of hie advance, and that he cannot be eharged with having been negligent, or with a want of due caution, in having trusted to the certifi cate of the proper officer, without further inquiry, when there was nothing iqthe circumstances under which the stock was offered to him, or relating to the person offering it, or to the amount of tne stock so offered, justly calcu lated to exalte tbe suapicion of a prudent and cautious man, that the officer of the company had departed from bis duty in issuing, or that the holder had bten guilty ef any improper practice in obtaining it. Chief Justice Oakley delivered an oral decision agree ing with tbe three preceding opinions in confirming the judgment of the Court below. Judge Campbell gave a written decision dissenting from the ether four Judges. Obituary# Michael Jobn O'Mkara died in Brooklyn, on the 2d ef June, of disease of the heart. He was about fifty, six jears of age and bad for a lo.g time past been en* gaged in the business ef a commercial advertising agent In New York and the neighboring cities. Mr. O'Meara was a native of the county of Tlpperary, Ireland, and came to this country from Dublin In 1832. Ho engaged in basinets then bat was not very successful. He woe previously marr.ed to Mary Anne Louisa Russell, daugh ter of Mr. Jobn Russell, of Russell Plaee, Dublin, who wss a worthy man and a good patriot. This lady, the widow, is now in rather straitened circumstances, and we understand it i. the intention of very many or our eromincntlrithcitis-ns?acquaintance, of her husband, er father, and herself?to tend her home to her native country to spend the remainder of her days there. DEATH OF TBE VENERABLE JUDGE WILDE. We take tne following notice from the Boston TVan tcrivt, of the 28d inst.:? We are called open this evening to report the death of one of the oldest, purest and most respected of the citi zens of Massacnaeatts. The venerable fiamaol 8amner Wilde, LL D., died at his resilience in this city yesterday, u> the 86th yrsr of bis age. He died fall of years ana honors, fearing behind a spotless character and an ex ample worthy of the emulation of all. We have neither space or time to write anything mere than a brief sketch of the long and ureful career of thts upright judge and most exemplary ottizen. His brethren of the legal pro fession evincea their high appreciation of hie talents and virtues, when, at the age of foar secre years, he retired from that judicial station ha had adorned by his learning and digsifled by his probity tor a?ij half his life. Tney will sow take note or nls death, and attest in all suitable ways tbeir regard for hie memory. Judge Wilde was born in Taunton, Feb 6,1771. He ?ntersd Dartmouth College in 1780, where he graduated in 1789. He read law with David L. Barnes, Esq., of Taunton, afterwards Judge of the United States District Court for Rhode Island. He was admitted to the bar in 1792, and removed to Maine. After practising his profes sion in WalJoboro' and Warren, hs removed to Hallo well in 1799. During his residence at the plaoa last named, he was twice chosen one of the electors of Presi dent and Vico-Pretident of the United 8tatee. In 1814, be was a member ot the Executive Council. In June, 1816, he was appointed by Governor Caleb Strong, an Associate Justice of the Supreme Court of Massachu setts, In which station he remained until 1851. At tho separation of Maine from Massachusetts in 1820, Judge Wilde removed from H.llowell to Newburyp.rt, where he resided till 1831, when be removed to Boston, where he has since remained. Be was a Judge of the Supreme Court for a longer period than any other member of the Msisaehnjietta Judiciary. Bowdoin, Harvard, and Dartmouth Coll#ges conferred the degree of Doctor of laws upon him, and all acknowledged that tho honor was worthily bestowed. From the preoocing statement, it will be sesn that the official career of the deceased extended bock to the pe riod when Maine was a part of Massachusetts. Amidst all the changes of parties, and mutations in public af fairs during this time, he retained the esteem, and we may, with truth, fay, the live of men of all shades of political and religions opinion. He united uncom mon frankness with great simplicity and his name was the very synonym for Integrity. He was an active federalist in early life, and wa do the "Father of his country" no Injustice when ere say that Judge Wilde was a politician of tbe "Washington school." The deceased was the last surviving member of tbe celebrated "Hartford JLnvention." He was one of tbe Massa chusetts delegates to that body, which hoe been so fa mous tivour j otitic.11 annsls Now that the membem ef tbat'bedy'bsA no looger cognisant of human oensnro er applause, may. we not hope for an Impartial history of the Convention ? Judge Wilde was allied by mortage to many influential families. His grandfather, whose name he bore, and to whose liberality he was tndebtel for his education, was ore of tbe earliest and firmest friends or tbe American cause prior to tbe Revolution. This patriot died before the conflict with the mother country, but he gave his only slave her freedom, to show his love for liberty. A son of the deceased is now clerk of the f uprenis Court in this coanty. Tbe brilliant and talent ed wife of tbe Hon. Caleb Cushltg was tbe third daughter ot Judge Wilde. III. only surviving daughter is the wife of Robert Farley, Esq , of this city. Mrs Wilde died in June, 1820. Tbe deceased was a member of the American Academy of Alts and Bciences, and other associations. His fune ral will take place to morrow (dunday) morning, at 9 o'clock, at tbe King's chapel. On the opening or tbe Common Pleas Court this morn lsg, William J. Hubbard, Esq., announced the death of ex-judge Wilde in some appropriate remirks, to which Chief Justice Melien responded in a feeling tribute to the character of the deceased, and in respect to his memory adjourned the court till 9 o'clock Monday morning. In the Municipal Court a similar adjournment was made, on motion of County Attorney Cooley, who supported the s.me with a brier speech, which was eloquently re plied to by Judge Hoar. The Supreme Court was not In seeston. A meeting of the Suffolk Bar was held at 1)4 o'clock this afternoon, in the Law Library room at the Court House. Though assembled at a very short notloe, the meeting was quite full, but an adjournment was made till 8)4 o'ekek Monlsy morning for formal pioceedings. Mr. E F. Barmaid, one of the clerks la the 8urveyor General's office, died at Fort Leavenworth on the 10th Inst, of congestion ol the brain, after an illness of only aweek. * The Burning of Bayou Barn, La.?Lois Half st Million. It was announced by telegraph tbnt the town of Bayou Fare. La , had been destroyed by firs. Tbe New Orleans Delta, of June 17, gives the following particu lars ;? On Friday night, at ten o'clock, a fire broke out in 4 Bayou Sara, wblcli bad tbe moot melancholy conse quences, aa the town was nearly burnt to the ground and about 1500 000 worth of property destroyed. Such, at least, Is the rough estimate of the losses made by the towns people who were Interested in the various i' and houses consumed by the flames. We are Indebted for the details of tbe disaster to Capt.7 RDher, of the steamer Amanda, which are briefly as foU lows Tbe Are originated from Incendiarism, in a stable in tbe rear of the establishment of J. Meyer, frees which-, It spread rapidly to the concern of Harper k Son. In n a very brief space of time tbe flames bteams anoontrcll nble, end swept in the direction of the wind along the banks of the beycu. All the housee oa the line ef Ite conrte were consumed, and mere ashes replaced them. The coarse of the Ore was than directed towards Market street, and flnal y settled In the foeus of the town, ut terly destroying the emtrul block sou nil the property which it contained. It was impossible to arrest the sweep of the flames. Each moment it gathered strength until it became irresistible, and the people loosed on in dnmb amazement while the conflagration raged around them. We cannot glvo tbe exact details of the losees, but the establishments of tbe following nervous were burned down A. Levy & Co., Hoffman ? Oa, J. Meyer k Co., the ledge office; J. Michael, Harper h Son, Smith's Hotel, beeldes two coffee bouses. The house of Seteet A Co. was also destroyed, and many other bntldings too* numerous to mention. The warehouse of Leach n Chitek on the new wharf, was amongst the.first to fool the r*A ?ages of tbe Are. " There wns not." any* our Informant, '? " a hotel, coffee hours, or warehouse left In Rayo* * Fara." Surety, If the theorise of some of our aavnae ore cor rect, there ought to bo n plentiful supply of rain in the devoted tows. H certainly has bad enough fire.

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