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Laa cartaa. planchaa. tableaux, etc., pauvant dtra fiimte i das taux da rMuction diff^rents. Lorsqua la document eat trop grand pour dtre raproduit an un saul cliche, il est IWmi i partir da I'angia sup^riaur gauche, da gauche d droite, at da haut en baa. en prenant la nombra d'imagas n^cassaira. Les diagrammes suivants illustrant la m^thoda. 1 2 3 1 2 3 5 6 ANNUAL REPORT of the Attorney General. *»• Att6bnet Gbfebal's Oppicb, ) Lansing, March, 1860. j To Hia ExcdLemjcy Mops Wisneb, Governor of Michigan: Sib — I have the honor to submit to yon my official report for the year 1859. In consequence of t^e dela} of most of the Prosee«ting Attorneys in f&rwa^^ding to me their reports, I have been unable to .present my own nntil tho present time. THE CABB OP WILLIAM TTLBB. A criminal case of much interest arose in the State in the fall of 1858. The brig Concord, owned by partie* in Cleveland, Ohio, on her homeward passage from the Up- , per Lakes, stopped at Port Sarnia, in Canadian waters, at the outlet of Lake Huron. While lying there, moored to ,- the Canada shore, she was, at a late hovi on the night of. the 29th of November, boarded by William Tyler, a D/^^ uty United States MafsBUi-of this District, accomp^ied by a pos9e ii:oinui?0|t Huroj^|pi the American sidf of the River, St. 'fcldi^'^^^Mi^^ time a warrant issue^lS^ th^^d Stages District Court in % t< .-^' f li #l' » » • a Doc. AdmiraHy, commanding him to aeize^ the Concord and de- tain her to' await the action of the court upon a libel filed therein by Sheldon McKnight, the litbellant, charging that in a coUieion between her and t'he propeller ^^ General Taylor," off White Fish Point, Lake Superior, the propel- ler belonging to him, had been da^aiaged by the negligent conduct of the officers and crew of the Concord. The warrant bore date November 19th. Tyler went on board, armed with a loaded pistol, (revolver.) His assistants were on board ix small tug, which was secretly made fast to the brig, and, under instructions from Tyler, held them- selves in readiness for a " fight," being armed with various implements. Tyler mounted the rail of the brig, and while standing upon it, was accosted by Henry Jones, her master, and asked what he wanted. Tyler replied that he was a Deputy United States Marshal ; that he had a war- rant to attach the brig, and. had come on board for that purpose. Jones replied that the brig was lying in British waters, beyond the reach of his process, and that he could not take her. Tyler rejoined, with an oath, that he would, cost what it might ; that he was a United States Marshal, and as uch had a right to seize her. The parties were standing within some four feet of each other, Tyler on the rail and Jones on his own deck. The altercation was brief, but warm ; and while Jones was declaring energetically, "the first man who steps his foot on this vess— ," Tyler fired his pistol at his head. The ball entered the head just above the left temple, and Jones fell senseless on the deck. He was immediately taken across the River to Port Huron, in St. Clair county, and there died in a few hours afterwards, [from the effects of the shot. Tyler was at oi^e apprehended by the local authorities, and brought to Deti:>it. Here he was complained against before a United States riommissioner, and for want of bail, committed to prison to await the action of a grand jury in the Federal Court. ■^^i^-u/< No. 8. 8 It ii proper here to add that Tyler resided at Detroit, and had been for some time employed by the United Statea Marshal in serving Admiralty process up and down the river, in which employment he had on a few previons occasions seized vessels in British waters, pretending that he had received from certain professional gentlemen at Detroit, advice to the eflfect that he had a right to serve the Admiralty process wherever he could find the craft afloat, whether in American or Canada waters. On the present occasion there is good ground for believing that he was promised a very liberal reward if he would seize the Concord and bring her in ; and the fact is beyond dis- pute that for three days before the homicide was commit- ted he. had been making careful preparations to resort to deadly violence in case he should meet with resistance ; that during all this time he well knew that the Concord was lying at Sarnia, and that on several occasions he ex- hibited his pistol to others, and in a boastful and swagger- ing manner, threatened to use it for the purpose of effect- ing the seizure even in Canadian waters, and to take the life of any one who should resist him in the attempt. He was also, on his way from Detroit to the scene of the mur- der, admonished by at least a half a dozen experienced men that he had no right or authority to serve his writ on the other side of the boundary line, (which is the centre of *he river,) and advised not to go there for any such pur- pose. To all these friendly warnings he turned a deaf ear, vehemently asserting that he had the right, and threaten- ing to shoot down any person who should make resistance, and even offered an extravagant sum of money to certain persons to accompany and assist him. Being committed to jail on a United States warrant, he remained in confinement at Detroit, until the 15th of March, 1859, when a special grand jury was summoned by the Court to act upon his case. In the meantime, as Jones' death had taken place within i .-j!^/|j» ,#•: • 'f '■W ^f . Doo. tho limits of this State, and thus presented a case of felony under the laws of the State, if the mortal blow was not justifiable, I advised the Prosecuting AttcTneylof St. Clair county to lay the facts before a grand jury of that county, and procure him to be indicted. The Prosecuting Attor- ney (Mr. McAlpine,) at once complied with the suggestir-n; • and on the 4th of February, some five weeks before^ he was indicted in the Federal Court, a grand jury oi that county found a bill against him for murder. Thi^ indict- ment was founded upon §5944 of the Compiled Laws of 1857, which provides "that if any such mortal wound shall be given, or other violence or injury shall oe inflicted, or poison administered on the high seas or r ther naviga- ble waters, or on land, either within or with jut the limits of this State, by means whereof death shall ensue in any county thereof, such offense may be prosecuted and pun- ished in the county where such death may happen." It seems from the language employed that the essence of the defense consists in the fact that the violence: used, though committed abroad, attaches to and accompanies the victim into the jurisdiction of our State, and there'destroys his life ; the murderous intent and the murderous act are con- templated as being united and as continuing their effect upon the victim after he has, by whatever means, arrived within our jurisdiction ;— the unlawful death is really the crime which the offender, although not personally present, has committed within our borders; and the legislature plain- ly intended— and it is a consideration redounding to their honor as evincing their scrupulous care to punish crime- not to allow the State to be the asylum of felons who have Bought the lives of their fellow creatures abroad, but who have escaped condign punishment in the place where the mortal blow was given. Knowing that the accused was held in confinement un- der process of the United States, I abstained, out of re- gard to the federal authority, and in order to avoid every No. 8. appearance of a collision between it and the anthority of the State, from all attempts to arrest Tyler on the State indictment until he should be discharged from the claims of the United States ; not becansc I supposed the judicial authority of the State over his persoi was suspended by the fact that he was in the custody of the Federal Court— a doctrine the truth of which I deny and which, in cases where such Court has no jurisdiction, it would be absurd and ridiculous to contend for,— but because I was unwil- ling by any action on my part to produce even the sem- blance of a hostile collision between the State and Federal judiciary. I might have proceeded by haleaa carpus to test the jurisdiction of the Federal Court in the case, but omitted to do so for the reason above given. Preferring to permit the Federal authorities to procoed in the matter until they had done with Tyler, I took no o^her step until they had finished with him. On the 4th Tuesday of March, a grand jury, summoned by the United States Marshal, assembled to act upon the case of Tyler,— a case thought worthy of this particular attention by the District Judge. It was a special term of the Circuit Court of the United States for the District, held and presided over by the District Judge. Feeling a deep interest in the question whether the Court possessed power and jurisdiction to try the prisoner for a crime committed not within the district, nor within the lim- its of the United States, I ventured to suggest to his counsel (Mr. C. I. Walker and Mr. George V. N. Lo- throp) that I entertained doubts as to the jurisdiction of the Court over the case; that I felt quite confident the Federal Court had no right whatever to try him, and that the only jurisdiction to which I held him to be amenable was that of the State Court. I earn- estly urged them to raise this question of jurisdiction be- fore the Federal Court, but they refused, taking the ground that the latter Court possessed full and ample ju- 1 -•+"rT?' ^^ ''"'nilffil'" '"'"'' ' "WHllV'tfi^ I^E^^iBi^i -^^:'mss. Doc^ Tisdiotion of the offence, under the laws of the United States. The District Judge charged the grand jury in unequiv- ocal terms that the Court had jurisdiction of the offence, un- der the act of Congress of March 3, J 857, entitled " An act in additiont to an act more effectually to provide for tJie pun- ishment of certain crimes against the United /States, and for other purposes." Section Ist of that act being the clause under which this strange and anomolous jurisdiction was claimed, and under which the proceedings was had, is as follows : " Be it enacted, &c. That if any person or persons upon the high seas, or in any arm of the sea, or any river, haven, creek, 'basin, or bay, within the Admiralty Jurisdiction of the United States, and out of the jurisdiction ofanypartio tdar State, shall unlawfully, wilfully, but withomt malice aforethought, strike, stab, wound or shoot, at any other person, of which striking, stabbing, wounding or shooting, such person shall afterwards die upon the land, within or without the United States, every person so offending, his or her counsellors, aiders and abetters, shall be deemed guilty of the crime of manslaughter, and upon conviction thereof shall be punishable as hereinafter provided." The punishment provided by section three, is imprison- ment, with or without hard labor, for a period not exceed- ing three years, and a fine not exceeding $1000, at the dis* cretion of the Court. Tyler was indicted in the Circmit Court for manslaughter under this statute, and put upon his trial before a traverse jury, summoned by the United States Marshal for that purpose. Many of the important facts of the case, going to charge the prisoner with a malicious and premeditated homicide, were not laid before the jury ; but as it was, enough was shown to satisfy every unprejudiced mind that • the act was willful and malicious. No* 8. The District Judge charged the jury, in Bubatance, as follows : Ist. " That under the issue they had nothing to do with the consideration of the homicide as murder, though if the act had been committed in a sudden heat the use of the pistol would have constituted the offence murder at com- mon law ; 2d. That the issue being voluntary manslaughter or not, the evidence showing accident, and the absence of all in- tention to kill or do a bodily hurt, made the offence invol- untary manslaughter j if the jury believed that the act was committed on the Canada side of the boundary line • for the defendant had no right as a Deputy Marshal to serve his process without the bailiwick of the Marshal ; and the use of the pistol in the enforcement of process is of itself an unlawful act ; 3d. To justify a killing in self-defence it must appear that the party [killing] could not escape from his assail- ant ; which was not made out by the evidence, as the de- fendant could have jumped back upon the tug without danger ; 4th. Whether the homicide was accidental or not, was a question for the jury ; but if accidental, the homicide was not excusable if committed in the performance of an unlawful act ; 5th. The jury were the judges of the credibility of thfr witnesses, and the discrepancy as to the main fact must be determined by preponderance and consistent probability • 6th. The prisoner was entitled to any reasonable doubt arising from evidence, whether or not the explosion [of the pistol] was accidental , 7th. There can be no doubt as to the unlawfulness of the act, for as a question of law the Court settle the point that the brig Concord, moored to the Canada shore, was without the United States and that the defendant had no I .r>* i « i hi ;; .1 i 1^ i a=^ mam' I Doo. right to eeize her ; and waa therefore gailty of at least a trespasB in taking posaession of her." Such was the charge of the District Jadge to the jury. He did not instruct them that the Court had no power to try Tyler at all, which in my opinion he ought to have done ; but, as the prison'^r's conniel did not raise that question he deemed it best to take it for granted that he possessed jurisdiotion of the offence, and acted upon that assumption. The jury were out three hours. When they came in their foreman enquired of the Court, " Whether the jury covld render a modified verdict ?" to which the Judge re- plied that they were confined to the issue and must find the prisoner guilty or not guilty. One of the jury then •tated that the jury were unanimously of opinion that the act was accidental f and requested further instruction " as to the law of involuntary homicide ;" and the charge upon that point was repeated. They then retired, and in ten minutes brought in the following rerdict : " The jury find the defendant guilty of manslaughter ; but unanimously recommend the prisoner to the mercy of the Court, and say that tJiey believe that the killing was in- voiv,niary and unintentional on the part of the respondent." Without wasting criticisms upon this extraordinary ver- dict, it is sufficient to say of it, that if the jury honestly believed what they said, that the killing was '' involuntary and unintentional," they ought, as honest men, to have found the prisoner not guilty even of manslaughter, for it is monstrous to punish a man for an act which he commits unwillingly and unconsciously, and which he has no inten- tim to commit. We have heard of a certain self-called re- ligious tribunal which was once in the Labit of punishing the mere intention of the accused, without waiting for proof of any overt act of crime ; but it remained for this, an American jury, to find a man guilty of doing an ect by ■\ ■'»«Mlil came in No. 8. f mere aooident, in which not his malice nor even his inten- tion concurred I The very frame and form ^ ihe rordiot conspire to show that a violent struggle was going on be- tween a downright conviction on the part of the jury, of the prisoner's guilt, and a determination on their part to shield him, so far as lay in their power, from the punish- ment justly due his crime. The verdict was a perfectly fitting consummation of such a struggle. The Judge manifestly regarded it as a substantial ac- quittal, for he sentenced the prisoner to thirty days im- prisonment in the jail of Wayne county and to pay a fine of one dollar to the United States. At the end of this period, I caused Tyler to be arrested by the Sheriff of St. Clair county, and arraigned before the Circuit Court of that county on the indictment found on the 4th of February. On his arraignment in that Court on the charge of murder, he put in the plea of autre fens convict, setting up as his defense the indictment, trial and conviction in the Circuit Court of the United States. Under my instructions the Prosecuting Attorney of the county replied to this plea, that the mortal stroke was given within the British dominions, on St. Clair river, without the Admiralty jurisdiction of the United States, and that the Federal Court had no jurisdiction of the of- fense. The prisoner's counsel demurred to this plea ; and on presenting the questions of law to the Circuit Judge (Hon. S. M. Green) he reserved them, as authorized by the statute, for the consideration of the Supreme Court of the State. The questions thus reserved are the following : "First. Had the United States, at the time of said con- viction and judgment, Admiralty jurisdiction over the waters of the River St. Clair, which is without the bound- aries of the United States and within the boundaries of the county of Lamb ton, in the Province of Canada, within the intent and meaning of the Act of Congress entitled " An act in addition to an act more efifectually to provide 2 f'i 14) Doc. Wli it'i; * 1^ 1^ I iiH If.t P !r for the ptmighiuent of crimes against the United States, and for other purposes," approved March 3, 1857. Second, Was the shooting of Henry Jones by the defend- ant in the manner and under the circumstances set forth in the said pleas and replications, and in the place set forth in the said replication, within the Admiralty and jurisdic- tion of the United States for the Seventh Circuit and Dis- trict of Michigan, under the said first section of the aet of Congress aforesaid." At the October term of our Supreme Court, 1859, 1 par- ticipated in the discussion oi these questions. Tiiu Court, after mature consideration^ determined that the Federal Court had no jurisdiction to try Tyler for the offence; that the same was not committed within the Admiralty juris- diction of the United Static , and that both questions ought to be answered in the negative ; and to certified to the Circuit Court. The case is reported in Tth Michigan Ke- T»0Tts, p. 161. After this Jecision and at the November term of the Cir- cuit Court of St. Clair county, held on this occasion by Hon. B. V. H. Witherell, the prisoner was again arraigned, his former plea overruled, in accordance with the opinion of the Supreme Court, and he tried on a plea of not guilty. I assisted at the trial, and after a most patient in- vestigation of the facts, the jury returned a verdict of murder in the second degree. There was not the slightest proof that the shot was fired involuntarily or unintention- ally ; but there was abundant proof that Tyler shot Jones wilfully, deliberately and intentionally, for the purpose of possessing himself of the Concord and bringing her to De- troit. Upon the whole evidence, I am satisfied that the crime was murder. Few oases of greater premeditation and deliberate purpos.s to kill, in the contingency of resis- tance to an unlawful act, are to be found. The Circuit Judge sentenced Tyler to confinement in the Stat^^ Prison for the period of only six yoars ; and im- No. 8. 11 mediately upon prononncing the sentence sospended it by a formal order to enablo the prisoner to prosecute a writ of error and bill of exceptions, to the Supreme Court of the State, founded not only upon the record in the case, presenting the same questions previously decided by the Supreme Court, (the former decision being merely advi- sory as to what disposition the Circuit Court ought to make of the questions reserved,) but upon points arising during the trial. The case is for hearing ct the next April term of the Supreme Court. I am informed that the British government has demanded of the government of the United States, tht rendition of Tyler under the Ashburton treaty of 1842, as being guilty of an oflfenco for which under that treaty he may be handed over by the President of the United States to the authorities of Canada for trial and punishment there. What action the President has taken on the sub- ject of this demand has not yet transpired ; but, inasmuch ?z the prisoner has committed an offence against the laws of this State and is now in the custody of our Courts, it is presumed the President will not undertake by means of his Executive warrant, to wrest him from our jurisdiction. Should he, a very grave and exciting question will at once arise, whether a prisoner detained on criminal process in a State Court of competent jurisdiction, charged and con- victed of crime against her laws, can be by any power on earth legally snatched from her custody and turned over to other hands for trial for the same crime. Should sach an attempt be made bofore the expiration of Tyler's sen- tence, it is not to be doubted that the State would in every legal way vindisate her sovereign right to the possession of the prisoner. After undergoing the State sentence on a conviction of murder, it would if possible be still more objectionable for the British government to claim, or the Federal Executive to surrender him for further trial and punishment. It is apprehended that not only a sense of 1 r 1 ■' ^1 '.>' y:m 'ill ^s til 'I J M ' p »> if! ■» ! 112 Doc. common justice would restrain our neighbors from press- ing such a demand, but that the constitution of the United States, which declares that no person shall, for the same offence, " be twice put in jeopardy of life or limb," would present an insurmountable barrier to the exercise of such a power by the President. And hence I conclude that Ty- ler is solely amenable to the justice of this State. If I have felt it my duty to give special attention to this case, it has been because of my anxiety to ascertain and preserve the boundary, not always very distinctly marked, between the judicial power of the United States on the one hand and that of the State's on the other. The his- tory of the country and of its jurisprudence is full of ad- monition that this constitutional line of separation cannot be too scrupuoualy watched and guarded ; and it teaches that not only have the Federal Courts, under the construc- tion they have in some instances given to the grant of Ad- miralty power in the Federal construction, extended that jurisdiction far beyond the limits recognized by the earlier decisions of the Courts and the general understanding of the country ; but that in other cases of the highest impor- tance the Federal Courts have made decisions and ad- vanced claims to judicial authority which strongly encroach upon the just rights of the States. CASE OP OBIN C. WOOD. It may not be without utility for me to allude to a case which has arisen in this State under the treaty of Wash- ington, above mentioned, as showing the embarrassments to the reclamation of fug'tivos from justice produced by the interpretation put upon it by the British colonial au- thorities. The provisions of the treaty securing the right of mutual reclamation of such fugitives, are as follows : " It is agreed that the United States and her Britannic Majesty shall, upon mutual requisitions by them, or their ministers, officers or authorities, respectively made, deliver up to justice all persons who, being charged with the ■■•**^. No. 8. IB crimo of murder, or aBsanlt with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either, shall seek an asylum, or be found within the territories of the other : Provided^ That this shall only be done upon such evidence of criminalty as, according to the laws of the place where the fugitive or person so cJiarged shall be found, would justify his apprehension and commitment for trial, if the crime or o fence had there been committed ; and the re- spective judges and other magistrates of the two govern- ments shall have power, jurisdiction and authority, upon complaint made under oath, to issue a warrant for the ap- prehension of the fugitive or person so charged, that he may be brought before such judges or other magistrates, respectively, to the end that the evidence of criminality may be heard and considered ; and if on such hearing the evidence be sufficient to sustain the charge, it shall be the duty of the examining judge or magistrate to certify the same to the proper executive authority, that a warrant may issue for the surrender of such fugitive. The expense of such apprehension and delivery shall be borne and de- frayed by the party who makes the requsition and receives the fngitive." — [Art. X, of the Treaty; see U. 8. Statutes at Large, vd. 8, p. 676.] At the May term of the Circuit Court of the county of Wayne, 1857, the grand jury found a bill of indictment for the crime of murder against one Orin 0. Wood, a Can- adian and a subjeuc of the Queen of Great Britain, charg- ing him with having on the first day of October, 1856, fel- oniously killed and murdered one Calvin Cornell at the city of Detroit, in said county. It seems that Wood was a young physician, settled and in business at Hillier, Prince Edward county, Canada ; that Cornell, a plain, honest, healthy farmer, resided in his neighborhood and had pat- ronized him on a few occasions ; and that both started to come west, Cornell having a considerable sum of money rv ' *ig fc^JStS^^ hfl 14 Doo. .4il li*l * fii with him in gold, and intending to purchase lands in some of the western States, and Wood, without money, except a trifling sum for expenses, and merely.oflfering himself as a sort of traveling companion to Cornell. They went to- gether to Buffalo, New York, by water, and thence in a steamer to Detroit, both occupying the same state-room. Cornell was sea-sick on the voyage up the Lake, and Wood gave him medicine which appeared to increase rather than relieve the sickness. Arrived at Detroit, both occupied the same room at the hotel, Cornell still being sick. Wood still gave him medicine and called another physician ; but to no avail. Cornell died the next morning, only a few hours after his arrival at Detroit. No money was found on his person, in his trunk or elsewhere, and he was buried by Wood the same day. Wood immediately left the hotel, pretending he was going west to Chicago, but in faet took passage at once for his home. After arriving at home, he was observed to have considerable sums in gold, although known to be poor. He was arrested in Canada by the lo- cal authorities on a charge of murdering Cornell. On the examination it appeared that the friends of the deceased had removed his body from Detroit to Toronto, and there subjected the stomach and intestines to a chemical analysis by skillful physicians. This analysis exhibited the pre- sence i f a deadly poison in those organs in quantity suffi- cient to destroy the life of a healthy person in a few hours, but the examining magistrate felt compelled to discharge Wood upon the ground, which was doubtless correct, that there being no proof of the adminstration of the poison in the province, and Cornell having died in Michigan, the prisoner had not committed the crime within the Canadian jurisdiction. The evidence of his guilt, produced in this State, was almost wholly circumstantial, no one witness and no one circumstance alone, furnishing probable cause, but all the m»iHiir-^ No. 8. 16 facts, when properly connected furniphing almost irresisti- ble eridence of his gnilt. On the finding of the indictment against Wood, I in- formed the Attorney General of Canada of the fact, (Ap- pendix No. 4,) and at once proposed the necessary papers to procure a requisition from the President of the United States on the authorities of Canada for his extradition and trial in our Court, and enclosed them to General Cass, the Secretary of State. (See Appendix, numbers 1, 2, 3.) My communication was promptly replied to by Mr. Appleton, acting Secretary, informing that the government of the United States had made requisition on the British govern- ment through the resident British minister, for the surren- der of Wood. {See Appendix No. 5.) On receiving this communication, I wrote the Solicitor General of Canada, requesting him to advise me whether the requisition had been received. (Appendix No. 6.) This letter was an- swered by a letter from the Attorney General's office on the 11th of June, informing me that it was impobsible for the Canadian government, although it had received it, to surrender Wood merely on the requisition of the Presi- dent ; that an authenticated copy of the indictment would not be sufficient evidence of criminality to justify his ar- rest there, and that the evidence upon which the bill was found must be there produced. (Appendix No, 7.) Deem- ing the views presented in this letter incompatible with the true interest and meaning of the 10th article of the treaty. I replied to it in my letter of the 13th of June, (Appendix No. 8 ;) and on the same day again wrote the Secretary of State, (Appendix No. 9,) enclosing him a copy of the note from the Attorney General's office, (App. No. 8.) On the 17th, I again wrote him, (Appendix No. 10,) enclos- ing copies of two telegraph despatches, advising me that Wood had made his escape. On the 22d, Mr. -':. pleton addressed me a letter (Appendix No. 11,) advising me that the American government had once entertained the same 1« Doo» > view of the sufficiency of an indictment which had im- preflsed itself npon my convictions. Despairing however of being able to reclaim Wood, under such a construction of the tre ity as wae put upon it by the English government and under their statute passed to carry it into effect, I let the matter rest ; but at leng.h, on learning that Wood had probably commiUed a forgery against Cornell, I again called the attention of the Secretary of State to the case in my letter of the 2l8t December. {Appendix No. 12.) To this I received the reply of the Secretary dated Dec. 24th, enclosing me a paper which he treated as a copy of the Canadian statute for the " better giving effect to the 10th article of the treaty. {Appendix Noa. 13, 14.) It will be seen that the Provisional statute provides that if the Can- adian Judge shall deem the evidence sufficient to sustain the charge ''according to tU laws of the Province, if the of- fence alleged had been committed therein," it shall be his duty to certify the same to the governor, ifec. ; and there- upon the latter is to issue a warrant for the arrest and ex- tradition of the offender. It is obvious that this statute was intended as a legislative construction of the treaty, and that the Canadian Parliament, like the Imperial Par- liament, have assumed to themselves, notwithstanding the terms of the treaty, to determine what kind, quality and amount of evidence shall be produced before they will sur- render an accused person. This is plainly to render the treaty a dead letter and to transfer whatever force and ef- fect its language has to the discretion of the legislative bodies ;— indeed, to deprive it of all force, meaning and effect, except such as they may see fit to give it by statute; for if they may, without infringing the treaty, declare that evidence of a certain quality only shall be received, they may also declare that none shall be deemed sufficient, and thus totally annul and set aside this most salutary clause. But the common law of England from the earliest times, has regarded an indictment regularly found as sufficient ■-•Wil Vo. 8. 17 evidence of criminality to justify the apprehension and commitment for trial of the person charged ; and this prin- ciple is universally recognized in the several States, and, it is believed, in Canada. Any statute or regulation to the contrary would be in itself such a singularity, such an anomoly, as to strike the community with astonishment. It will not be denied that had the crime in the present case been committed in Canada and the indictment found there, it would have justified the immediate arrest of Wood and his commitment for trial, under her laws. Upon what principle, then, her authorities could, upon a proper requisition from the federal government, refuse to give a corresponding or even any effect to a regularly found American indictment it is diflScult for me to understand. I know indeed that all treaties do not possess the charac- ter of laws in the courts of the countries which are parties to them ; yet in our own country the constitution itself gives them legal force and obligation in all our Courts, by declaring that they with all valid statutes shall be supreme laws of the land. The Secretary of State in his letter of 24th December, remarks that the British statute " does not materially dif- fer from the act of Congress for carrying into effect cer- tain treaty stipulations between the United States and foreign governments for the Apprehension and delivery of certain offenders and which will enable the pursuing par- ties, in this instance, to act understandingly in the matter." But on recurring to the statute he refers to, {the act of Con- gress of August 12, 1848,) it will be seen at once with what inattention the Secretary of State had read that statute, — or, I might perhaps say, with what an ingenious generality of statement he wards off the necessity of considering and deciding upon the real merits of the question before him ; which was, Whether a duly authenticated copy of an in- dictment found by an American grand jury, without fraud or collusion, accompanied by a proper and sworn complaint '^1 *f t ' ' I li ' I i\ II -fi III! ;■! 'i: II lib k\ 18 Doo. of the proBecutor, is. under the 10th article of the treaty, sufficient evidence of criminality to require the surrender of the criminal at the hands of the British authorities? Now, on perusing the act of Congress it will be seen that the British statute, instead of " not differiog materially from it," ifl wholly different from and incompatible with it. The act ot Congress, so lar from making the kind and quan- tity of the evidence of criminality to depend upon the le- gislative will, declares in terms that "if, on such hearing, the evidence be deemed sufficient by him. (the Judge of Commissioners,) to sustain the charge under the provisions of the proper treaty or convention, it shall be his duty to certify the same, together with a copy of all the tes- timony taken before him, to the Secretary of State, that a warrant may issue upon the requisition of the proper authorities of such foreign government for the surrender of such person, according to the stipulations of such treaty , or convention." This clause does not, like the British statute, leave the question of the kind and quantity of evidence to depend upon a local statute passed with direct reference to the case. It is plainly a non-claim of any such power on the part of Congress, but leaves the judge or other magistrate to determine the question upon the general principles of construction and evidence. It autl^orizes him in his judi- cial capacity to construe the treaty in the particular case and to judge of the admissibility and effect of the evidence, without being hampered by legislative restrictions, quali- fications and prohibitions. The remark of the Secretary, whether hasty or upon deliberation, seems certainly in dis- paragement of the faith of the government of the United States in performing fully and fairly its obligations under tho treaty. That government has by no means resorted to any evasions, shifts, or legislative constructioas of the treaty ; nor has any of the States. All are willing to fulfill requirements so promotive of peace, mutual good-will and No. 8. If the canse of civilization ; and it is to be regretted that the Secretary of State should have taken a view so unfavora- ble to our own government, without, so far as appears, even diacusring the question with the British minister. EncounteriDg so serious an embarrassment from a quar- ter whence I could not anticipate it, I was forced to aban- don all attempts to bring Wood to trial, and the indictment is still pending. ^>f^A_i 26 Doo. ■M ¥.yl H -' i\ * able to discover the slightest evidence that any snhse- qnent Governor, or other State officer, ever gave it^ the least approval or countenance, except the Board of State Auditors who allowed it in December, 1854. On the 5th of August, 1852, the Phoenix Bank called upon Mr. Stewart, their agent, then in the city of New York, and required him to convey to them the Saginaw lands', and to come to a final settlement with them touching his agency in the premises. He had used for his own purposes, but with the full knowledge and consent of the Bank, and as part of his regular compensation as their agent, all the property and assets he had received from the State Bank, except the Saginaw lands, and the whole of the assets he had received from the Bank of the River Raisin. On that day he conveyed to the Phoenix Bank all the Saginaw lands, inserting in his deed a covenant of warranty as against his own acts only; and at the same time entering into a full settlement with the Bank for his Bervices as their agent or attorney. This settlement paper, of the same date as the deed from him to the Bank, recites the facts that the draft for $8,500 had been paid by the F. & M. Bank, and that the draft for 17,900, on the Bank of the River Raisin, had not been paid ; and further, that Stewart had from time to time informed the Bank of all his proceedings. It discharges him from all claim or demand to account for the property he had received, and gives him 1525 in addition, he agreeing to pay off the taxes on the Saginaw lands, and the Bank covenanting to furnibh him the money to do so. Thus the title of these lands passed absolutely to the Phoenix Bank, and all the other property to Mr. Stewart. This was manifestly an election by the Bank to accept the lands, and to abandon all claim as against the State, inas- much as the State had never been unwise enough to "assume" a debt which she never contracted, and had never recognized directly or indirectly. But it seems the M No. 8. 2T Bank was not yet satisfied. It was still inspired with the idea that it might induce the State to indemnify it against the consequences of its own folly in intrusting the drafts to Norton, and against its expenditures to its agent. E. H. Brown, President of the Peninsular Bank, Detroit,, was for a long Aime the correspondent of the Phoenix Bank, at Detroit. His deposition, as well as those of B, G. Whittemore, the State Treasurer from April, 1850, to January 1, 1855, Porter Kibbee, the Commissioner of the State Land Office during the years 1853 and 1854, Wtlliam Graves, the Secretary of State during the same period, (the three last named State officers constituting the Board of State Auditors,) were all taken at Detroit under a com- mission issued by the Court, previously to the first trial of the cause in New York, as well as that of Mr. G. V. N. Lothrop, the attorney of the Phoanix Bank, who prosecuted the claim before the Board. Mr. Brown testified that during the years 1852, 1853. and 1854, he had repeated conversations at the Phoenix. Bank with Thomas Tileston, the President, and Henry Carey, the Vice President of the Bank, in which they gave him a history of the claim, and that neither they nor any other officer of the Bank ever informed him that the Bank had ever ever received any security, lands, judgments, bonds, mortgages, notes, or other valuable thing, either as security, or in settlement of the claim ; and that in the month of November, 1854, only one month before the claim was allowed, Mr. Tileston offered to sell it to him upon the condition that he should guaranty the collection of the face of it ; that is, $16,400. Mr. Brown 8we£>rs that he agreed to this. Mr. Whittemore swears that in the sum- mer of 1852 he had two conversations with Tileston and Carey at the Phcenix Bank ; that they then showed him books and vouchers which, upon their face, showed that the claim had never been paid, and urged him to bring it before the Board ; that they said Stewart once had charge ly_ ^ « » > rt Wi « tolfer»>ft ~ 28 Boo, of the claim, btit that he had never collected or settled any part of it; and Mr. Whittemore adds, that nothing was said by them, or eituer of them, in relation to said claim, or any part thereof, having ever, in any way, been paid or secured. Mr. Whittemore being a member of the Board, and bound to act officially on the claim, this treat- ment of him by the officers of the Bank cannot be looked upon in any other light than a deliberate attempt to de- ceive and mislead him— and the attempt was successful. The other members of the Board swear that they, too, were wholly ignorant of the previous settlements by Stew- art, of the trust deed of 1840, and the deed from Stewart to the Phoenix Bank of August 5th, 1852, and the settle- ment between Stewart and the Bank of that date, as well as all Stewart's other transactions touching the claim. In addition to the witnesses above named, Mr. HasTceU, the Cashier of the Bank of the River Raisin, and George F. Porter, Esq., the President of the Michigan State Bank, were examined as witnesses under the same commission, which was executed at Detroit before Jeremiah Van Ren- ssellaer, Esq., the gentlemen appointed by the Court, in the summer of 1856. The evidence shews that a part of the papers relating to the claim were placed in Mr. Brown's hands by the Phoenix Bank in January, 1852, and by him left with Messrs. Lothrop and Duffield, attorneys at law in Detroit, for collection. In June, 1853, Mr. Tileston visited Detroit, and had an interview with Mr. Lothrop in his office re specting the claim, at which time he delivered to him the rest of the papers relating to the claim, and among them the trust deed of 1840; which, it will be recollected, showed upon its face that it was given in settlement of the debt due from the State Banh. He, also, after this, sent to Mr. Lothrop the deed from Stewart of August 5th ; and both these deeds were in Mr. LothrOp's hands during the pendency of the claim before the Board, as well as various ' iiiiiif i No. 8. 29 or Bettled Eit nothing on to Baid way, been iber of the , this treat- b be looked mpt to de- iccessfal. t they, too, ts by Stew- 3in Stewart the settle- ate, as well claim. In Haskell, the I George F. State Bank, jommission, h Van Ben- e Oonrt, in ers relating nds by the a left with ' in Detroit, ted Detroit) is office re I to him the imoDg them recollected, ement of the this, sent to 3t 5th; and during the II as various other papers showing the actings and doings of Mr. Stew- art in relation to it. What was the precise character and purport of these other papers has not been fully proved, but enough appears to show that they were of a character to put the attorney on an immediate inquiry into all the facts of the two settlements, and that such an inquiry would, without expense, or the delay of a week's time, have brought to his knowledge every fact of any impor- tance showing the absolute satisfaction and discharge of both branches of the claim. It does not, however, appear that he made any such inquiry, but contented himself, as he testifies, with the assurance given him by Mr. Tileston, at their interview in June, 1853, that the "Phoenix Bank had never accepted, received, or acquired, any interest under the trust deed of 1840, and that they never had anything to do with it." The charter of the old Phcenix Bank expired by its own limitation, December Slst, 1853 ; but before it expired an- other banking corporation was created under the statutes of New York, to which all the property of the old, includ- ing this claim, was assigned through trustees ; and thus the new Bank, known as the Phoenix Bank of the City of New York, the defendants ii> the suit, acquired all the in- terest of the old Bank therein. It was in reality but a mere continuation of the old Bank, having the same stockholders and officers, with a few exceptions, Mr. Tileston being its President, and the new corporation commencing its busi- ness as such, the first of January, 1854. Mr. Lothrop pre- sented the claim to tho Board of State Auditors on the 12th of May, 1854, for the new Bank, accompanying it with a written argument in favor of its allowance, but omitting all allusion to the two deeds in his possession or to the settle- ment made by Stewart. He furnished no proof what- ever either of the legal liability of the State originally or of any subsequent recognition of the claim by it ; but as- serted that "the faith of the State had been violated and 1/ '■f -T '^ h .jcan-^ xj^J" w^ ^.'J^.^^ 0f ' ' "^""" ^ *^J:y^'?* Vl ^*'l ' '?!i! ^' ' ^^'^^ it 9^^***- -*>-'-*. 40 Doo. *■ ^ ft that the Phoonix Bank had never been paid a dollar ;" he as- flnred the Board that he " would fairly and fully state every defence that he had ever heard hinted at/' and in fulfilling this engagement assured them that he Md not "know that the draft upon the Bank of the River Raisin had never been paid," and that it was immaterial whether it had or not ; that he had "given a fair presentation of the claim;" that he had " no hesitation in saying in the most solemn manner that, as a lawyer, he had no doubt that any court of justice, could it be brought before them, would at once render judgment for the claimants," and " that he could not see how anything short of the grossest repudiation could justify its rejection." Mr. Lothrop's argument will be found in the Appendix, No. 15. And it should be added that when examined as a wit- ness in the case, Mr. Lothrop testified that although he had had the deed from Stewart of August 5th, 1852, in his possession from the time he received the deed of 1840, (from the State Bank to S. of the Saginaw lands,) yet that he did not remember to have ever noticed it until the February after the allowance and payment of the claim. Every man must judge of the credit due to so improbable an excuse for withholding all knowledge of it from the Board. Had either of these deeds been laid before them they could not for a moment have entertained the claim. Hon. William Hale, then Attorney General, was re- quested expressly by a member of the Board, as he testi- fied, to give the claim his attention, but never appeared before them on the subject ; and the Board were wholly without legal adyice or any witness or testimony on behalf of the State. The Board held the claim under advisement till the 2d of December, 1854, when they allowed it, prin- cipal and interest, amounting to $35,603 74, for which Mr. Whittemore gave Mr. Lothrop his official check on the State Treasury, and which was duly paid to Mr. Brown, who accounted for the same to the Phoenix Bank. i«.X \. No. 8. 81 1 as a wit- though he .852, in his d of 1840, i,) yet that ; until the the claim, mprobable b from the afore them he claim. 1, was re- ^s, he testi- ■ appeared 3re wholly Y on behftlf idvisement ed it, prin- for which leck on the Ir. Brown, k. On entering upon my office in 18/)5, 1 gave the matter of this allowance my attention, and after obtainii ^ a full knowledge of the facts, by application to the State Bank and the Bank of the River Raisin, and also to other sources of informatioiB, and satisfying myself that the claim, as against the State, was totally unfounded in law or justice ; that the State had never, directly or indirectly, been in any degree benefitted by the two drafts, nor received a cent on account of them ; and that the allowance was ob- tained by fraudulent practices resorted to by the old Bank and the new, in the shape of false representations of the actual state of the case, and fraudulent concealments from the Board of most material facts which it was the duty of the Bank and its attorney frankly to make known to them, I brought an action, in September, 1865, in the Superior Court of the City of New York, to recover back the amount thus paid. This was with the advice of my friend •/. L, Jernegan, Esq., an able and learned member of the bar of New York, Much delay necessarily intervened in prepa- rations for the trial, and it was first tried in the spring of 1857, before Hon, Murray Hoffman, at the special term of the Court. A large amount of testimony was put in on both sides, and after taking full time for consideration the Judge finally, on the 3d of July, rendered judgment in favor of the State for the full amount of the allowance, together with interest and costs, amounting in all to $42,152 97. In the very able opinion of Judge Hoffman, he sets forth with great clearness and force all the mate- rial facts of the case, showing that the claim never had any foundation in law or equity, and that it was entirely inequitable for the Bank to retain the money ; but as he did not see fit in direct terms to charge the Bank and its agents with fraud in the procurement of the allowance, the defendants, on appeal to the general term of the Court in March, 1859, succeeded in getting the judgment set aside and obtaining a new trial for that technical defect w ■ - -^ I f I' II * f;.! ji| Doo. in hia findiug. A new trial was had before Eon. Joseph S, Bosioorth, the Chief Justice of the Superior Court, holding the special terra, in October, 1859, at which I as- sisted, as I had done at the trial in 1857. After a full and patient hearing, and after taking time for the re-examina* tion of the depositions and other proofs exhibited on the trial, the Chief Justice, on the 28th of November, rendered judgment for the State for the whole amount of the claim, with interest and costs of suit, amounting to $48,115 97. I annex hereto in full his ofRcial finding of the facts and his determination of the points of law arising in the case. (See Appendix Nos. 15 and 16.) It will be seen from the former (No. 15) that the Judge rests his judgment upon the fact that the Bank and its officers and agents practiced ac- tual fraud upon the Board of State Auditors by means of false suggestions and fraudulent concealments touching the claim while pending before them ; and that this was done contrary to their duty in the premises and with the deliberate intention to cheat and defraud the State. The Bank again appealed to the General Term, and in March, 1860, 1 assisted in the argument of the case at the General Term. The Court has not yet decided the appeal. Fully pnrsuaded that the allowance was procured by fraud, I renew my recommendation that no effort should be relaxed on the part of the State to recover the money. It is not easy to conceive of a more flagrant case of public plunder. DISPUTES CONOEBNINO THE RIGHT TO COUNTY AND TOWNSHIP OPPIOES. In my last report, I observed : •' The numerous appliaa- tions to the Attorney General to file informations in the nature of a quo warranto to try the right of incumbents to their offices, and the long delays intervening in the Su- preme Court (where they must now be brought) before a decision can be had, — always in most cases tantamount to a total deprivation of his rights to the claimant, have sug- a'. No. 8. 88 • TOWNSHIP gested the inquiry whether some mode more expeditious and less expensive cannot be adopted. The multiplicity of elective oflSces and the endless disputes arising from errors committed at the polls or in the canvass, seem to me to make it necessary to provide some means of set- tlement short of a resort to the Supreme Court. I think the public into rest would be promoted by providing for the determination of all cases respecting township offices, and perhaps even county offices, exclusively in the Circuit Courts, giving the party aggrieved the right to have the judgment reviewed in the Supreme Court." I earnestly renew this recommendation. The framers of the present Constitution seemed to have had in view the same statu- tory provision when they declared (Art. VI. § 8,) that the Circuit Courts have power to issue writs of habeas corpus, mandamus, injunction, quo warranto, certiorari, and other writs," &c. ; yet the legislature have never seen fit to pro- vide the machinery by which they might proceed by quo warranto. I think also they should be empowered to issue such writs in many cases where corporations are concerned. Under our various general laws authorizing the creation of plank road corporations, mining, manufacturing, me- chanical, charitable, religious and literary corporations, these bodies are becoming numerous. Parties interested, instead of finding their articles of association in the stat- ute book, are compelled to resort to the records in the of- fice of the Secretary of State in order to find the name of the corporation and of the stockholders and officers ; and, under the present state of the law, they are compelled, if they desire to test the legality of the corporation or of its acts, to resort to the Supreme Court and submit to an ex- pense in so doing, a large portion of which would be saved were the local Circuit Court vested with the necessary powers to try and determine the question. ^^ 4' 6 ^M^^Jii^J^^ .Si^iMtiSS^^- tfm^--'-^:::-:ms. .■jra«*««rOs:rii«at;(aFi f :^! M IH^ ^l 84 Dof. DMU8« OP INDICTMBHT8 AMD OBAND JUBIM. It affords me pleasure to be able to report that tbe act of last session, (No. 138.) "To provide for the Trial of Of- fenses upon Information." has been found to work well m practice. Very few grand juries have been called since it went into operation, and a very great saving of expense to the counties has thus been secured. I have nms far heard of no instance in which complaint has arisen of any oppressive use having been made of the powers given to the Prosecuting Attorneys under the act; and I cannot doubt that, with such trifling modifications as time and experience may suggest, the mode now adopted will not only continue to be the policy of this State, but will be imitated by many of our sister States. , . , , I annex hereto an abstract of the reports which have been made to me by most of the Prosecuting Attorneys of the counties. It will be seen that many of them are in default in respect to the reports due for the year 1859. As required by law, I have uniformly made known such default to the Treasurer of the proper county, with a rec ommendation to prosecute for the penalty affixed by law to such neglect ; though I am constrained to say that since I have held my present office, (from Jan. 1. 1855.) I never yet have heard of any suit having been brought by the Supervisors for the penalty incurred by the Prosecuting Attorney for default in making his report. The penal clausft of the statute appears to be a dead Utter. I have the honor to be, Tour obedient servant, J. M. HOWARD, Attorney General. Dot. B. it the act •ial of Of- rk well in lied since if expense p +hua far aen of any a given to I cannot time and d will not it will be 'hicli have ttorneys of [lem are in year 1859. nown Bnoh with a rec' ted by law Y that since )5,) I never ght by the Prosecuting The penal APPENDIX IRD, I QemrcH. I J ^ 1 1 W^''^'* ' 1 1 \ i; 1 1 ,'j i 'i: 1 IP* ! siMI APPENDIX. NO. 1. Attobnit Oimbbal'b Offiob, ) Detroit, May mh, 1857. ] Sib — ^Enclosed I send you an authenticated copy of an indictment for murder, recently found by the grand jury of Wayne County, against Orin 0. Wood, a resident of the township of Hillier, in Canada, about one hundred and twenty miles east of Toronto, on Lake Ontario ; also an affidavit of Jordan Cornell, a son of the deceased Calvin Cornell, named in the indictment. I attended the grand jury who found the bill, and axam- ined the witnesses, and read the documentary proof. The evidence strongly indicates that the deceased came to his death by poison, administered to him by the accused on their passage from Toronto to Detroit by way of Buffalo, at the close of September last, of which Cornell died at the Michigan Exchange on the morning of the first of Oc- tober. There is, also, strong evidence that the deceased had about $3,000 in money on his person, and that he was robbed of it by Wood, who is a young physician. The object of the enclosed papers is to obtain a requisi- tion upon the British authorities in Canada for the sur- render of the accused, and his delivery to an agent, in order that he may be brought to Detroit and put upon his trial. Should the President see fit to issue the requisition, I presume he will find it necessary to appoint some person here as agent to bring the prisoner to this State ; and in that case I venture to suggest the name of Frederick F, it i Doo> Egglinton of thiB city as a trusty and discreet person to rftPrtive such authority. Should there appear to be any informality in the papera, or any further eyidenoe be requisite m order to ju.tify the isBuinff of the requisition, I shall feel obliged for early adyioes on the subject, and attend to the raatter at once. I ought to add that the matter has undergone a judioial investigation at Toronto, but that the counsel for the "Iwn advised the discharge of Wood, not for the want of ;"oof of his criminality, but on the ground that the cnme was really committed and consummated in this State. As the charge is a serious one, and there is danger that the accused may fly, I shall feel gratiHed by a reply at your early convenience. I have the honor to be, Your obedient servant, (Signed) J.IM.HOWAKD, Attorney nenercU. Hon. Lbwis Casb, Secretary State, Washington, D, G. ^';j NO. 2. State of Michigan, County of Wayne, ss. ^ , r. . -. - L Jordan Cornell, at present of the city of Detroit m Baid county, on oath depose and say, that I reside in the township of HiUier, in Prince Edward county Canada West, and in the family of my step-mother, Mrs Elizabeth Cornell, the widow of the late Calvin Cornell, who died at the city of Detroit, in said county of, Wayne, on the first dav of October, A. D. eighteen hundred and fifty-six; that I am the eldest son of said deceased ; that said deceased was the same person who is named inlthe copy of mdict- ment hereunto annexed, and who is therein stated to have been killed and murdered on the day and' year aforesaid by Orin C. Wood ; that I am the complainant in said pros- Doo. person to tie papers, to jufitify I for early T at once, a judicial )1 for the be want of , the crime State, [anger that a reply at No. 8. 39 lRD, f General. [ Detroit, in eside in the nty, Canada rs. Elizabeth )11, who died Q, on the first ifty-six; that aid deceased opy of indict- tated to have ear aforesaid t in said pros- ecution ; that upon credible information I verily believe the charge contained in said indictment to be true ; that the said Orin C. Wood is now a resident of said township of Hillier, at a place called Wellington, about six ^iles from my own residence, and that I am personally ac- quainted with him. This deponent therefore prays that a proper requisition may issue for the surrender of said Orin 0. Wood to the proper American authorities in order that he may be apprehended and delivered up for trial upon the said indictment, which is now pending in the Circuit Court for the county of Wayne, and State of Mich- igan. This deponent further says, that immediately after the death of said Calvin Cornell, the said Orin C. Wood, who was present at his death, immediately left the State of Michigan and returned to said Wellington, in said Province of Canada, where he has since resided. And further this deponent saith not. (Signed.) JORDAN CORNELL. Subscribed and sworn to before me, the undersigned. Clerk of the Circuit Court for the county of Wayne, this twenty-sixth day of May, A. D. 1857. In testimony whereof, I have hereunto set my hand and a£Sxed the seal of said Court, [L. S.] at the city of Detroit, in said county, the day and year aforesaid. (Signed.) ENOS T. THROOP, ClerJc of the Circuit Court for the Co. of Wayne, Mich. COPY OP INDICTMENT. State of Michigan, Wayne County, S8, The Circuit Court for the County of Wayne, of the May term thereof, in the year of our Lord one thousand eight hundred and fifty-seven. The grand jurors of the people of the State of Michigan, inquiring in and for the body of the county aforesaid, upon r "™•■ NO. 4. Attorney General's Op_fici, ) Detroit, May 27, 1857. Sib— The grand jury of this (Wayne) county havd in- dicted Orin C. Wood for the murder of Calvin Cornell in this city, on the Ist October last. The means are not set forth in the indictment, as we have what is called the " Lord Denman Act" in this State. The evidence before the grand jury left no doubt upon their minds. It was very cogent. I have sent the necessary papers to Washington for the purpose of procuring a requisition under the Ashburton treaty (of 1842) for the surrender of Wood, and his removal to this State for trial. I shall not receive an answer for eight or ten days, but have no doubt of the speedy arrival of the requisition. I am unacquainted with the laws of Canada tonchmg the requisition, and must, of course, rely upon you in this regard. ' «. ± i. n v Meanwhile I beg to assure you that no effort shall be omitted on my part to bring Wood to justice. I have the honor to be, Ac, J. M. HOWARD, Attorney General. Hon. John Macdonald, Attorney General, Toronto, 0, W, i»i NO. 5. Dbpatmebnt op State, ) Washington, 1st June, 1857. ) J M. Howard, Esq., Detroit, Michigan: Sir— I have to acknowledge the receipt of your commu- nication of the 27th ultimo, and to state in reply, that a requisition has this day been made, by the government of the United States, through the British Minister in thiB city upon the government of her Britannic Majesty, for Doc. Oppici, ) 1857. f ity have in- 1 Cornell in I are not set 3 called the I doubt upon igton for the e Ashburton I his removal Q answer for peedy arrival *da tonching n you in this ' fort shall be 7ARD, ley General, W, State, ) une, 1857. ) r your commu- 1 reply, that a government of inister in this c Majesty, for No. 8. 4S the delivery of Orin C. Wood, a fugitive from the justice of the United States, in Canada, to Frederick F. Egglin- ton or to any other person duly authorized by the author- ities of Miohigan to receive the said fugitive and bring him back to the United States for trial. I am, Sir, your ob't servant, (Signed) JOHN APPLETON, Acting Secretary, NO. 6. Attobnbt Gbnbral's Oppiob, ) Detroit, June 9, 1857, J Sib— I have the honor to acknowledge the receipt of your telegraphic dispatch in answer to mine of yesterday. From the fact that I had on the 6th inst., received a letter from the Secretary of State of the Unitod States, dated Wash- ington, June 1st, advising me that on that day a requisi- tion had been made through the British Minister at Wash- ington, upon the government of her Britannic Majesty, for the delivery of Orin C. Wood, to an agent therein named, to be transferred to the authorities of this State for trial, I was led to presume that the Governor of Canada had, at the date of my dispatch, received the requisition. He will doubtless be in receipt of it in a few days, and I shall feel particularly obliged if you will give me early in- telligence of the fact, should your official relations permit it ; so that I may, without loss of time, send the agent who is to bring the accused to this city. A telegraphic dispatch will he quite sufficient. The agent will of course bring a letter from me. I have the honor, to be, Very respectfully, your ob't serv't, JACOB M. HOWARD, Attorney General, Hon. Hembt Smith, Solicitor Gen% Toronto, C. W, .,,-.^'1 '^,.ff- 4-: w<\ w: M m III 44 Doc. fl NO. 7. Office op Attorney General, U. C, ) TorontOy l\th June, 1857. ) SiR-The Solicitor General of Upper Canada, who haa now left Toronto, the seat of government, before leaving, handed to me your letter of the 9th inst^rt m relation to the extradition of Orin C. Wood. The : ■ .tion from the government of the United States was . .oived by our government only on 8th instant, subsequent to the date of the Solicitor General's telegraph to you. It is impossible for this government, upon the requisition merely, to order the surrender of 0. C. Wood. He is now at large and must be arrested. To authorize his arrest it will be ne- cessary for you, in case there are any original depositions in your State, to send by a special messenger, who can identify Wood, copies of such depositions, certified under the hand of the person having the legal custody of the orieinal papers. The messenger producing the certified copies must be also able, upon his oath, to attest the cor- rectness of the copies from having himself compared them with the originals. If no depositions exist in Michigan, then you must send the next best evidence of criminality that is in your power. The bare production of a true bm found by a jury of your State, would not of itself be suffi- cient. There must be the evidence upon which the bill was found. Upon production of the evidence by your messenger, before a magistrate of the county in which Wood resides, it will be for the magistrate, if in his opinion the evidence 18 sufficient to establish the crime of murder, according to our laws, to commit the offender to custody. The magis- trate then certifies to the government the evidc ^e upon which he issued his warrant of commitment, tJm-eupm the government take the matter in hand, and, if satisfied of the correctness of the proceedings, issue a warrant for the surrender of the fugitive. Our laws with respect to the I. I i .< No. 8. 45 U. c.,i a, who has le laaving, relation to ition from Lved by our the date of [ i imposHible %, to order t large and 1 will be ne- depositions ar, who can •tified under stody of the the certified test the cor- apared them [q Michigan, f criminality of a true bill tself be suffi- hich the bill r messenger, ?Vood resides, the evidence , according to . The magis- vidcne upon thereupon the atisfied of the irrant for the •espect to the surrender of fugitives from justice, much resemble your Congress act of August 12, 1848. If you will consult your statute according to its provisions, you will in all proba^ bility be right according to our laws. I have the honor to be, sir, Your most obedient servant, (Signed) ROBERT A. HARRISON. Hon. Jacob M. Howard, Attorney General, Detroit. NO. 8. Attobnet General's Office, Mich., ) Detroit, June 13 46 Doo. to iuBtify the executive authority ou whom the requisition iB made to Burrender the person charged ; for, as the com- mon law prevails in Canada, (as it does in Michigan,) the finding and presentment of the indictment would, as I suppose, warrant the immediate apprehension of the ac- cused. and his commitment for trial. If this efficacy is to be denied to indictment regularly found within the respec tive jurisdictions, it is easy to see that in many cases the treaty will become, by a construction which seems to me incompatible in its terms, illusory and useless. Yet your letter asserts that " the bare production of a true bill by a iury of this State would not of itself be sufficient; there must be the evidence upon which the bill was found;" and refer me to the act of Congress of 1848, as containing probably all that is required by the British statutes on the subject. Although quite familiar with that act, I am not aware that the American authorities have ever given to it, or to the treaty of 1842, such an interpretation as would make a British indictment a mere nullity as evidence of criminality. You will see at once the impoasibility of a compliance with the terms your letter suggests, for there had been no preliminary complaint against Wood, and no examina- tion of witnesses before a Magistrate ; but the grand jury, after being duly summoned and sworn, proceeded to the inquest, which resulted in th« finding of a true bill ; and far the most important part of the evidence presented to them was from witnesseB present and testifying orally. The inquest was patient and thorough, but the evidence proceeding from numerous witnesses was of that circum- stantial character whose eflfect is totally destroyed by the absence of a single witness, or the omission of a single circumstance. It would, I think, be vain to expect the prosecution to produce before a Canada Magistrate the amount of proof they produced here. The task is perfectly hopeless ; and ^1 MiiiV sx No. 8. 47 ) requisition as the oom- cbigan,) the would, as I [» of the ac- efificacy is to 1 the respec- ny cases the seems to me }. Yet your rue bill by a cient ; there was found;" eis containing atutes on the act, I am not )r given to it, ion as would 3 evidence of a ccmpliance )re had been L no examina- le grand jury, seeded to the bruebili; and I presented to iifying orally, the evidence f that circum- troyed by the m of a single prosecution to Qount of proof hopeless; and if he is to rejudge the evid ^nce produced before the grand jury, as upon your construction of the treaty he would have a right to do, the thing may as well be given up and the man be allowed to remain in Canada ; although it is certain that if thus charged in the province he would at once be apprehended and committed for trial. I hope, however, upon a review of the subject, that the Executive of Canada may see cause to surrender "Wood without im- pofling terms with which it is impossible to comply. As the authorities of this State act in the matter subor- dinately to the federal government, my duty, for the pres- ent, will be performed when I have made known its present posture to the proper department at Washington. I have the honor to be, Very respectfully. Your obedient servant, J. M. HOWARD, Attorney General. Hon. Rob't A. Habbison, Tm-onto, C. W. NO. 9. Attorney Gemebal's Office, J Detroit, June 13, 1857. f Sir— I had the honor to receive the letter of Mr. Apple- ton, Acting Secretary of State, dated the 1st inst., advis- ing that a requisition for the surrender of Orin C. Wood, charged by indictment found here, with the murder of Cal- vin Cornell, had been made through the British Minister at Washington, upon the government of her Britannic Ma- jesty. I at once communicated that fact to the Solicitor General of Canada, with a request that he would be kind enoug ., when the requisition should arrive, to advise me of the fact so that I might take the neoessary steps for the extradition of the accused by the British authorities. In answer to my note (dated 9th inst.,) to the Solicitor Gen'l, •.-«^- *^ >i: -^ ig»i4ii^ig.^ .t^ -^~ixi)t r " m m ■ ^ Pi- I! 48 Doc. I received from Mr. Harriaon the original letter of which the enclosed (marked A.) ia a copy. Deeming the grounds taken to be very embarrassing, to say the leadt, to the efRcient operation of the 10th article of the treaty of Washington, and feeling an anxiety to bring Wood to justice for the heinoua crime with which he ia charged, I felt that the circumatancea of the case would juatify me, without wait- ing for a reference to you, in replying to Mr. Harriaon'e note. This I have done under this date, and have the honor to encloae you a copy of my reply, (marked B.) It ia with heaitation that I have ventured to diaaent from the views of Mr. Harrison as to the effect, under the treaty, of an American indictment when presented as evi- dence of criminality ; for I am quite aware that thia effect may become a subject of diacuaaion between the two gov- ernments, and must in the end be settled by their re8pe^ tive Courts ; and I have felt it a duty thus early to enable the proper department to give the question its attention,— if it has not been authoritatively settled, of which I am not aware. Should the Provincial government insist upon the prac- tical construction of the treaty indicated in Mr. Harrison's letter, my own knowledge of the circumstances enables and requires me to say that it will utterly defeat the endB of justice in the present case. It was my intention to forward to Canada, an authenti- cated copy of the indictment as evidence of criminality, to be used before the judge or magistrate, on the arrest and examination of Wood, prior to his surrender upon the requisition ; and for the purpose of arresting him, to have caused to be made such a complaint as the laws of Canada should require ; but if Mr. Harrison's view of the effect of the indictment is to be insisted on, I must of necessity abandon all further attempts, for they will be abortive. Attached to the copy of indictment inclosed in my letter ia the Secretary of State of the 27th ult., was an original No. 8. 49 aflSdavit of Jordan Cornell, charging Wood with the mur- der of his father. May I ask whether that affidavit or a copy has been transmitted to the Governor of Canada? If 80, 1 may possibly make it available without applying to yonng Cornell for another, which would be inconvenient as I do not know where at this time he is to be found. I have the honor to be. Very respectfully, Your ob't servant, J. M. HOWARD, Hon. Lewis Cass, ^"^'^^ ^''''''^' Secretary of State, Washington. NO. 10. Attorney General's Office,) Betroit, June 17, 1857. [ SiR—I have this day received from Mr. Jordan Cornell, the son of the deceased person charged to have been mur^ dered by Orin C. Wood, two telegraphic despatches, of which the following r^re copies : "June 16,1857. " By telegraph from Toronto. To J. M. Howard, Attorney General, dc: Wood left Wellington last Saturday. I telegraphed •from Wellington. Please send me an answer. (Signed) JORDAN CORNELL." "June 17, 1857. " By telegraph from Toronto. To J. M. Howard, Attorney General, Detroit: Dr. Wood has made his escape. Left on Saturday last. (Signed) JORDAN CORNELL." I am not informed to what place Wood has fled, and am apprehensive that the delay occasioned by the strange view entertained by the Canadian Government respecting # b.-i*«St 1 4 ir-f- i^mmOr f M k Doo. 50 the coDBtmotion of the 10th article of the treaty, will re- salt, if they haye not already reBuUed. in a complete failnre of justice in his case. It was, as I have said, one of pot«om«(7, by which Wood was enabled to rob his victim of about $3,000 at one of the first hotels in this city. A construction such as the provincial government insistB upon, requiring me to lay before the Canada Magistrate the evidence upon which the indictment was found, ap. pears to me to be the merest evasion of the treaty. I have the honor to be, Your obedient servant. * (Signed) J.M.HOWAKI), ^ ^ Attorney General. Hon. Lewis Cass, Secretary of State, Wa^Jiington, D. C, NO. 11. Department op State, ) Washington, 22d June, 1857. ) J. M. Howard, Esq., Attorney General of the State (^ Michigan, Detroit: SiR-Your letters of the 13th and 17th instant have been received. In reply, I beg leave to iform you that the insufficiency of an indictment .nder the 0th article of the treaty of Washington as proof of criminality agamjl a party claimed as a fugitive from justice in Great Britain, has heretofore been maintained by the imperial govern- ment, under the act of Parliament for carrying the treaty into effect. The Department understands, from a note o Lord Napier of the 20th instant, referring to the case of Wood, that the Canadian authorities takes the same posi- tion under the Act of Parliament of that province, entitled XII Vict., Cap XIX. . „ , J Mr. Everett, when United States Minister m England, was instructed to maintain the sufficiency of an indictment Doc. jaty, will re- a oomplete a,ye said, one )b his victim this city. A iment ioBistB a Magistrate as found, ap- reaty. S^ARD, \ey General. C. Ko. 51 ' State, ) ^une, 1857. f ^ the State oj t instant have iform you that ae 10 th article Linality againj^ Great Britain, iperial govern- ing the treaty from a note of to the case of 1 the same posi- ovince, entitled ter in England, ' an indictment and he acoordingly addressed a note to Lord Aberdeen to this effect, req'xesting that the. act of Parliament might be altered accordingly. That change, however, has never been made, nor can it be ascertained that the subject has since been pursued. The escape of Wood is to be regretted. If, however, he should be recovered, you may be able to pro- ceed against him according to the Canadian statute. With that view, the original deposition of Jordan Cornell, with the annexed copy of the indictment against Wood, which accompanied your letter to the Department of the 27th ultimo, is herewith returned, attested transcripts of them having been retained. I am, sir, your obedient servant, (Signed) J&HN APPLBTON, Acting Secretary, NO. 12. Attorney Gbneeal's Oppiob, ) Detroit, Deo. 21, 1857. \ Sib— I had the honor to address you on the 13th and 17th June last, respecting the case of a Dr. Orin C. Wood who had been indicted by the grand jury of Wayne county, in this State, for the murder by poison of one Calvin Cor- nell, at Detroit, in October, 185«, and who fled to Canada. It seems that the Provincial authorities hold an American indictment to be insufficient evidence of criminality under the treaty of '42, to authorize the arrest of a fugitive from the United States ; and the result has been in this case that the accused is still at large, it being impossible for me to produce before a Canada Judge, all the testimony, positive and circumstantial, upon which the indictment was found by a unanimous grand jury. I have quite recently been informed by the administra- tor of the deceased, that Wood has passed a note of hand for $1,350 purporting to have been signed by Cornell, and f ^- rTWi 52 Doo. iH tJH * M which the administrator pronounces to be a forgery, al- though in a suit against the estate the holder, upon Wood's testimony, recovered a verdict in the Provincial Court. This note, taken in connection with other facts in my pos- session, confirms my conviction that Wood is guilty of tho triple crime of murder, larceny and forgery ; and I feel constrained again to call your attention to his case. It aeems to me that the treaty is of little value if it is to he thus frittered away by exparte legislative provisions. Certainly in the present case the British construction op- erates as a complete protection to the accused. I have the honor to be, Your obedient servant, (Signed) " J. M. HOWARD, Attorney Oenerd. Hod. Lewis Cabs, Secretary of State, Washington, D. C. \ NO. 13. DBi»ARTMENT OF StATE, ) Washington, 2ith Dec, 1857. f J. M. Howard, Esq., Detroit, Michigan : Sib— I have to acknowledge the receipt of your letter of the 21st instant, in which my attention is again called to the case of Orin C. Wood, a fugitive from the justice of the United States in Canada. As the difficulty experienced in this case seems to have arisen from ignorance of the Canadian law on the subject, I herewith transmit to you two printed copies of the Can- adian act for better giving effect to the tenth article of the treaty between the United States and Great Britain, of the 9th of August, 1842, which act does not materially differ from the cjt of Congress for giving effect to certain treaty stipvlations between the United States and fo, .ign gov- ernments, for the apprehension and delivery of certain offend- No. 8, ers, ar stance AN A treai tea,, ers. Wh h Washi tliousa wherei of Oct eety ai quisiti ties, re who, b with i robber commil contra( found 1 this shi as, acc( or pers appreh offense Judges should plaint 1 No. 8. 68 ers, and which will enable the pursuing parties, in this in- stance, to act understandingly in the matter. I am, sir, your ob't servant, (Signed) LEWIS CASS. NO. 14, enclosed in No. 13. CANADIAN ACT— XII VICT., CAP. XIX. CAP. XIX. AN ACT for better giving effect, within this province, to a treaty between her Majesty and the United States of Amer- ica, for the apprehension and surrender of certain Offend- ers. [May 30, 1849.] ^ Whereas, By the tenth article of a treaty between Her Majesty and the United States of America, signed at Washington, on the ninth day of August, in the year one thousand eight hundred and forty-two, the ratificationa whereof were exchanged at London, on the thirtieth day of October, in the same year, it wa*; agreed that Her Maj- esty and the said United States should, upon mutual re- quisition by them, or their ministers, oflScers, or authori- ties, respectively made, deliver up to justice all persons who, being charged with the crime of murder, or assault with intent to commit murder, or piracy, or arson, or robbery, or forgery, or the utterance of forged paper, committed within the jurisdiction of either of the high contracting parties, should seek an asylum, or should be found within the territories of the other : Provided, That this should only be done upon such evidence of criminality as, according to the laws of the place where the fugitive or person so charged should be found, would justify his apprehension and commitment for trial if the crime or offense had been there committed ; and that the respective Judges and other Magistrates of the two governments should have power, jurisdiction and authority, upon com- plaint made under oath, to issue a warrant for the appro- * "A -■'^•rnrn^'' 44 ■ % i II i 1 .1^ 54 Doo. heniion of the fugitive or person so charged, bo that he might be brought before such Judges or other Magistratea respectively, to the end that the evidence of criminahty might be heard and considered, and if on such hearing the evidence should be deemed sufficient to sustain the charge, it should be the duty of the examining Judge or Magia- trate to certify the same to the proper executive authority, that a warrant might issue for the surrender of such fugi- tive and that the expense of such apprehension and de- livery should be borne and defrayed by the party making the requisition and receiving the fugitive ; and it is by the eleventh article of the said treaty further agreed, that the tenth article hereinbefore recited should be continued m force until one or other of the high contracting parties should signify its wish to terminate it, and no longer : And whereas, Certain provisions of the act passed by the Par- liament of the United Kingdom of Gre it Britain and Ire- land in the session held in the sixth and seventh years of Her Majesty's reign, for giving effect to the treaty afore- said, and entitled An act for giving effect to a treaty hetwem Her Majesty and the United States of America, for the ap- prehension of certain offenders, have been found inconven- ient in practice in this Province, and more especially that provision which requires that, before any such offender as aforesaid shall be arrested, a warrant shall issue under the hand and seal of the person administering the government, to signify that such requisition as aforesaid hath been made by the authority of the United States for the deliv- ery of such offender as aforesaid, and to require all justices of the Peace, and other magistrates and officers of justice, within their several jurisdictions, to govern themselves accordingly, and to aid in apprehending the person so ac- cused, and committing such person to jail for the purpose of being delivered up to justice according to the provis- ions of said treaty, inasmuch as by the delay occasioned by compliance with said provision, an offender may have No. 8. 55 time afforded him for elading pursuit : And whereas, by the fifth section of said act it ia enacted, that if, by any law or ordinance to be thereafter made by the local legislature of any British colony or possession abroad, provision shall be made for carrying into complete effect within such col- ony or possession, tho objects ot said act, by the substitu- tion of some other enactment in lieu thereof, then it Bhall be competent to Her Majesty, with the advice of Her Privy Council, (if to Her Majesty in Council it shall seem meet, but not otherwise,) to suspend the operation within any such colony or possession of the said act of the said Impe- rial Parliament, so long as such substituted enactment shall continue in force there, and no longer : And whereaSf it is expedient to make provision for carrying the objects of the said act and treaty into complete effect within this Province, by the substitution of other enactments in lieu of the said Imperial act. Be it therefore enacted by the Queen's Most Excellent Majesty, by and with the advice and consent of the Legis- lative Council and of the Legislative Assembly of the Province of Canada, constituted and assembled by virtue of and under the authority of an act passed in the Parlia- ment of the United Kingdom of Great Britain and Ireland and entitled An act to re-unite the Provinces of Upper and Loiver Canada, and for the government of Canada ; and it is hereby enacted by the authority of the same, that it shall be lawful for any of the judges of any of Her Majes- ty's Superior Courts in this Province, or for any of Her Majesty's justices of the peace in the same, and they are hereby severally vested with power, jurisdiction, and au- thority, upon complaint, made under oath or affirmation, charging any person found within the limits of this Prov- ince with having committed, within the jurisdiction of the United States of America, or of any such States, any of the crimes enumerated or provided for by the said treaty, tc issue his warrant for the apprehension of the person so t ••''* J "' -.hi laiiM ^iL^^^^^T^ 66 Doo. r charged, that ho may be brought before such judge or such justice of the peace, to the end that the evidence of crimi- nality may be heard and considered ; and if, on such hear- ing, the evidence be deemed pufficient by him to sustain the' charge according to the laws of this Province, if the offence alleged had been committed therein, it shall be his duty to certify the same, together with a copy of all the testimony taken before him, to the Governor or Lieutenant Governor of this Province, or to the person administering the government of the same for the time being, that a warrant may issue, upon the requisition of the proper au- thorities of the said United States, or of any of such States, for the surrender of such pereou according to the stipula- tions of the said treaty ; and it shall be the duty of the said judge or of the said justice of the peace, to issue his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shnll be made, or until such person shall be discharged accord- ing to law. • II. Provided always, and be it enacted, That in every case* of complaint as aforesaid, and of a hearing upon the return of the warrant of arrest, copies of the depositions upon which an original warrant in any of the said United States may have been granted, certified under the hand of the person or persona issuing such warrant, or under the hand of the officer or person having the legal custody thereof, and attested upon the oath of the party producing them, to be the true copies of the original depositions, may be received in evidence of the criminality of the person so apprehended. III. And be it enacted. That it sbM' be lawful for the Governor or Lieutenant Governor ot this Province, or the person administering the government of the same for the time being, upon a requisition made as aforesaid by the authority of the said United States, or of any of such States, by warrant under his hand and seal, to order the person No. 8. 57 3ge or such ce of crimi- L Buch hear- 1 to suBtain ince, if the Bhall be his y of all the • Lieutenant [ministering sing, that a 9 proper an- such States, the stipula- duty of the , to issue his ) charged to Tender shnll rged accord- lat in ef ery ng upon the I depositions ) said United r the hand of or under the egal custody •ty producing Dositions, may )f the person awful for the •ovince, or the same for the resaid by the of such States, ler the person 60 committed to be delivered to such person or persons as shall be authorized in the name and on the behalf of the said United States, or of any of such States, to be tried for the crime of which such person shall be so accused, and such person shall be delivered up accordingly ; and it shall be lawful for the person or persons, authorized as aforesaid, to hold such person in custody, and to take him or her to the territories of the said United States pursuant to the said treaty ; and if the person so accused shall es- cape out of any custody to which ho or she shall be com- mitted, or to which he or she shall be delivered as afore- said, it shall be lawful to retake such person, in the same manner as any person accused of any crime against the laws of this Province may be retaken upon an escape. IV. And be it enacted. That when any person who shall lAve been committed under this act and the treaty afore- said, to remain until delivered up in pursuance of a requi- sition as aforesaid, shall not be delivered up pursuant thereto, and conveyed out of this Province within two cal- endar months after such commitment, over and above the time actually required to convey the prisoner from the ^ail to which he or she may have b en committed, by the read- iest way out of this Province, it shall 'in every such case be lawful for any of the ju ges of Her Majesty Superior Courts in this Province, having power to grant a writ of habeas corpus, upon application made to him or them by or ou behalf of the person so committed, and upon proof made to him or them that reasonable notice of the inten- tion to make such application has given been to the Provin- cial Secretary, to order the person so committed to be dis- charged out of custody, unless sufficient cause shall be shown to such judge or judges why such discharge shall not be ordered. V. And be it enacted. That this act shall come into force upon the day to be appointed for that purpose in any pro- clamation to be issued by the Governor, Lieutenant Gov- o •%i lj^^i:.i^.t^ Doo. ernor, or person admiaistering the government of this Pro. vince, for the purpose of promiilgatiDg any order ot Her Maiesty, with the advice of her Privy Council, suspending the operation of the Imperial Act hereinbefore cited, within this Province, and not before, and shall thereafter continue in force during the continuance of the tenth arti- ole of the said treaty and no longer. (Signed) ^' ^' ^' NO. 15. BIOMB OP LAW. PACTS FOUND BY THE JUDGE. The President and Directors of the Phenix Bank, (com- monly called The Phenix Bank,) was a banking corpora- tion located in the city of New York ; and was incorpora. ted by an act of the Legislature of the State of New York, and was by such act (and acts amending the same,) vested with power and authority to transact and carry on banking business, and did transact] and carry on banking busmeBS from and after the passage of the act of February 2 1881, (Laws of 18S1, p. 28,) until the first of January 1854. John Delafield was President of said Bank during all the first part of the period last named, and until in 1839 or 1840, when he resigned, and Thomas Tileston was elected President of, and continued to be President of said Bank^ until its charter expired, which was on or about the last day of December, 1853. The State of Michigan, (the plaintiffs,) by the Legisla- ture of said State, passed an act in 1837, which was duly approved by the Governor of said State, on the 21st of March, 1837, which act reads thus, viz : (H^re the Jvdge inserts a cow -f «^^ ^*^^ ^*'^^^^ ^'^^, Act of 1837 ; to be fmrid in the Sess. Laws of 1837, page 152.) No. 8. 59 t of thie Pro- >rder of Her , suspending lefore cited, ill thereafter le tenth arti- C. A. P. )18 FOUND BY [ ' HIS CONOLU- I tBank, (com- king corpora- vas incorpora- of New York, same,) vested •ry on banking iking business )ruary 2, 1881, lary, 1854. ink during all antil in 1839 or on was elected t of said Bank, ■ about the last by the Legisla- v^hich was duly on the 2l8t of ye Million Loan 1837, i)a^e 152.) Under the authority of last said act, Stevens T. Mason, Jjsq., (being at the time Governor of the State of Michigan,) by a written letter of attorney, signed by him, bearing date at Detroit in said State, on the first of May, 1837, se- lected and authorized said John Delafield, President of said Phenix Bank, (and which letter of attorney was received by said Delafield, within twenty days after its date,) in the name of him, the said Governor, to carry into eflFect the provisions of said act, by negotiating a loan or loans to said State, and on euch terms as might be most advantageous to said State. The said letter of attorney reads as follows : Executive Department, ) Detroit, May 1,1^^1. J" Sir— By an act of the Legislature of tha State of Michi- gan, approved March 2l8t, 1837, the Governor is authorized and directed in the name and on behalf of the people of the said State, to negotiate and agree for a loan or loans not exceeding in the whole five millions of dollars. Under the authority in me vested by this law, I have selected and do hereby empower you, in my name, to carry into efiect its provisions by negotiating a loan on such terms as may be most advantageous to the State, keeping in view the lim- itations and restrictions of the act under which you were appointed. The fund which you are hereby authorized to raise, is to be applied by the State of Michigan to the purposes of internal improvement, and it is desirable that the x^egotia- tion should be contracted by instalments not exceeding one million of dollars annually, until the entire loan is taken up. This annual instalment may be made a half, yearly payment, if it would facilitate the negotiation, or at such other periods as may be by you found most advanta- geous. The details, however, of any contract you may enter into must necessarily le left to your discretion, to be regu- lated by circumstances which may arise in the progress of •60 Doc. if It I in ii { 1 ^ 'H your negotiation. But whilst it is expected that yon will, as the representative of the interests of the State of Mich- igan, negotiate her loan upon the most advantageous terms in your power, the public are hereby solemnly assured that ary contract entered into by you, will receive my sanction and confirmation, provided it does not exceed the power conferred upon you by the law from which you de- rive vour appointment, and which has been transmitted to you. Very respectfully, Your obedient servant, STEVENS T. MASON, Gov. of Michigan, John Dblapibld, i bq., city of New York, The said Governor, at the date of said letter of attor- ney, had caused a copy of said act to be delivered to said Delafield, and the latter, before the 20th of February, 1838 had full knowledge of the contents thereof. The Le- gislature of the State of Michigan passed another act, approved on the 15th of November, 1837, which reads as follows, viz : (Here the Judge inserted a Go^y qf the Act amendatory of the Loan Act, to he found in the Session Laws of 1838,^^. 3.) Said Delafield, on receipt of said letter of attorney, as- sumed and undertook to execute the trusts and perform the duties thereby conferred upon him. Thereafter, and before the first of January, 1838, the said Governor deliv- ered to said Delafield as such attorney, bonds to the amount of $1,0'0,000, dravm and made as authorized, by and for the purposes prescribed by said Act, to be sold by said Delafield as such attorney. By B.a Act of the Legislature of the State of Michigan, approved March 2t)th, 1835, a banking corporation was created under the name of the *' President, Directors and Company of the Michigan State Bank," which was located ^! ^ Ko. 8. 61 lat yon will, ite of Mich* ;eou8 termB nly assured receive my b exceed the lich you de« msmitted to [ASON, Michigan. ter of attor- Bred to said f February, }f. The Le- mother act, ich reads as lendatory of ^1838,>3.) ittorney , as- ind perform ireafter, and '■ernor deliv- )the amount , by and for 3old by said if Michigan, oration was irectors and was located L at Detroit aforesaid, and possessed the usual ordinary pow- ers and privileges of a banking corporation, and as such acted and transacted business for at least five years after the first day of January, 1838. John Norton, Jr., was cashier of said Bank, and acted as such during the years 1838 and 1839, and was also the Fiscal Agent of the Legis- lature of said State, appointed by a joint resolution of said Legislature, passed January 10th, 1887, and which is in the words following, viz : '^Besolved, by the Senate and House of Representattvea of the State of Michigan, That John Norton Junior, cashier of the Michigan State Bank, be, and he is hereby appointed Fiscal Agent of the Legislature." Before the 20th of February, 1838, said Norton, as such Cashier, became the holder of a bill of exchange drawn by said S. T. Mason, as such Governor, in favor of said Michigan State Bank on said Delafield, dated prior to the 20th of February, 1838, for the sum of $90,000, which draft, prior to the day last named, had been presented for accep- tance and payment, and had been duly protested for non- payment. After it was so protested, said Norton in Jan- uary or February, 1838, went from Detroit to New York, and applied to said Delafield for payment of said drafts. While said Norton was so as aforesaid in New York, Governor Mason wrote, and sent through said Norton, to said Delafield, a. letter, which letter Norton delivered to Delafield before the 13th of March, 1838, which letter reads thus : "Detroit, Feb. 24th, 1838. Dear Sir — In a conversation with Mr. Norton, the eve- ning before his departure, he suggested that he would like, in addition to his $90,000 due on my draft, to command some additional funds to purchase and redeem Michigan notes in your market. Mr. Norton is a particular personal friend of mine, and is the Fiscal Agent of the State, and idii "mmBit <*' 62 Doo. m lis m 1 |5 ! > . 1 Mi^ Cashier of the State Deposit Bank. You therefore, may, if you huvo rooelvod funds ou the bonds in your posiession, transfor to Mr. Norton, $60,000 (or) $100,000, tuking his oertificrtto of deposit from ' John Norton, Jr., CaBbier of the Michigan State Bank,' which will be cashed at vhe State Deposit Bank. This letter is enclosed to Mr. Norton, who will doliver it to you. Respectfully, (Signod) S. T. MASON. John Dblafikld, Esq." The said Phonix Bank and said Delafield had notice of said letter, and of the contents thereof, before the 13th day of March, 1888. On or about the 13th day of March, 1838, the said Phenix Bank, at the request of said Delafield and of said Norton as such Cashier, drew and delivered to said Norton two drafts or bills of exchange, each dated March 13th, 1838, and each drawn payable to the order of John Norton, Jr., as such Cashier j one was for the sum of $8,- 600, and was drawn on the " Farmers and Mechanics' Bank, a banking corporation located at, and doing business as such at Detroit aforesaid. The other was for the sum of $7,900, and was drawn on the " Bank of the River Raisin," a banking corporation located at, and doing business as such at Monroe, in said State of Michigan. Bach of said two corporations last named, wai created by and under a statute of the State of Michigan, duly passed and ap- proved. N. G. Ogden was Cashier of said Phenix Bank when last said two drafts were drawn ; they were drawn by him as such Cashier ; they were deli ^red by liim to said Nor- ton in a letter addressed to the latter by said Ogden as such Cashier, and said Norton as such Cashier, on receipt of said letter, and of the two said drafts then being there- in, signed a written admission of the receiot thereof, which letter and admission read thus : i Doo. erefore, mfty, ir puBBesBion, 0, tuking hiB JaHbier of the . at vlie State . Norton, who '. MASON. had notice of a the 13th day r March, 1838, Delafield and ivered to said dated March jrder of John he sum of $8,- chanics' Bank, g business as or the sum of liver Raisin," g business as Bach of said by and under assed and ap- X Bank when drawn by him aa to said Nor- iaid Ogden as ier, on receipt n being there- thereof, which No. 8. 68 "PhBMIX BlKK, ) New York, nth March, 1888. J J. NORTO^ Egq., Cashier: Dear Sir — Please receive herein my draft on Farmers and Mechanics' Bank, Detroit, $8,600 do Bank of River Raisin, Monroe, 7,900 116,400 On account of advance made by this Bank on Michigan bonds, deposited with John Delafield, Biq., President. Respectfully yours, (Signed) N. G. OGDBN." "Received of the Phenix Bank the above letter. JOHN NORTON, JR., Cashier." When last said two drafts were delivered to said Nor- ton and received by him, said Delafield had not received any funds upon the bonds so entrusted to him to be sold as aforesaid ; which fojct was known to the iaid Phenix Bank. Prior to the 13th day of March, 1838, John Delafield, as each agent, with the knowledge and approbation of Gov- ernor Mason, had made arrangements with James J. King, of the house of Prime, Ward A King, of New York city, to go to Europe, and who did, in consequence thereof, go to Europe, to negotiate in behalf of the State of Michigan, a sale of all the bonds issued and to be issued under said acts ; :.iid to procure advances to be made to said State to the amount of $150,000 pending said megotiations, and to be made by the first of February, 1838, by the same being paid into caid Phenix Bank for said State, and it was in anticipation of such advances being made, that the afore- said draft of $90,000 was drawn. When the drafts for $8,500 and $7,900 were advanced to Norton as aforesaid, the sum so advanced was charged ..%' ■ '^'- ' I 04 Doc. 1! on the bookd of the Phenix Bank to "J. Delafield, agent for the State of Michigan." After the aforesaid draft for $90,000, and another draft for $60,000, drawn by Governor Mason, in anticipation of the sale of said State bonds being effocted, and of such ad- vance of 1150,000 being procured, had been protested, said DelaBeld, while said Norton was so as aforesaid in New York, and at the request of Governor Mason, pro- cured an advance to be made by Prime, Ward & King, of $150,000, for and on account of the State of Michigan, which moneys so advanced were used to take up said pro- tested drafts ; said James J. King, by reason of some of said State bonds having been aold in the United States, by authority of Governor Mason, broke off his negotiations in Europe aforesaid, and declined to act further therein ; and on or about the fourth of June, 1838, Governor Mason con- cluded an arrangement with the Morris Canal and Banking Company, by which the latter company was to negotiate for the State of Michigan the sale of said State bonds, and was to refund to Prime, Ward & King the $150,000 which they had advanced as aforesaid, on receiving the bonds which had been entrusted to said Delafield for sale. Governor Mason being then in the city of New York, engaged in consummating the said arrangements, and with a view thereto, addressed to said Delafield, on the 4th of June, 1838, a note in writing in the following words : Morris Canal Oppicb, j_ New York, June Uh, 1838. ) John Delafield, Esq. : Sib— You will deliver to Theodore Romeyn, Esq., the whole amount of Michigan bonds in your possession, (say ttvelve hundred thousand dollars at 6 per cent, stock.) Mr. Romeyn will hand you the amount of Prime, Ward & King's charge, and account for advances to the State. Respectfully, Your obt. servt., STEVENS T. MASON. No. 8. 66 another draft nticipation of id of Buch ad- en protested, ) aforesaid in r Mason, pro- ,rd & King, of of Michigan, e up said pro- an of some of ited States, by legotiations in • therein ; and lor Mason con- \\ and Banking IB to negotiate :,ate bonds, and imO.OOO which ing the bonds for sale, of New York, aents, and with on the 4th of ig words : Office, \ ! m, 1838. 1 leyn, Esq., the possession, (say nt. stock.) Mr. 'rime, Ward & ) the State. T. MASON. The said Delafield at this time requested that the 116,- 400 alleged to have been advanced on behalf of the State of Michigan to Norton, on the 13th of March, 1838, ehonld also be then refunded. Governor Mason, in answer to this request and claim, wrote a note to said Delafield, in the words following, viz : "New York, June 4th, 1838. Sir— John Norton, Esq., having received from you two drafts, one on the Farmers and Mechanics' Bank, of De- troit, for $8,500, and the other on the River Raisin Bank, for $7,900, in adjusting our accounts it becomes important to fltate, that when I left home, according to my impression, those drafts were not collected ; but so soon as I learn that snch is the case, I will cause the account to be remitted to you. Respectfully, S. T. MASON. John Delafield, Esq." Upon the recept of said last letter, Mr. Delafield surren- dered all of the said State bonds held by him as such agent as aforesaid, and Governor Mason then gave a receipt therefor, reading thus : " Received, New York, June 4th, 1838, of John Delafield, Esq., the entire amount of Michigan State bonds, hereto- fore placed in hie hands as agent. S. T. MASON." When the two drafts (viz: one for $8,600, and one for $7,900,) were delivered by the Phenix Bank to Norton as aforesaid, the Phenix Bank and Delafield believed that the advance would be recognized and treated by Gov. Mason as an advance made to the State of Michigan, and made ' said advance in actual good faith, believing that said Nor- ton would pay to said State and on its behalf, the sum 00 advanced, and would be expected and required by Gov- ernor Mason bo to do. 9 * 'SJkfr" a- .All's L^WMBfeiafeAwaaNSfe-i If. .( f> '14 I 'T " I 66 Doo. The Cashier cf the Phenix Bank, by letters addressed to Gov. Mason-one dated November 20th, 1838 ; one da- ted March 22d, 1839 ; one dated May 13th, 1839 ; one da- ted the 15th day of July, 1839-nrged him to give his at- tention to the matter of these two drafts, amounting to $16,400, and to remit the amount of said alleged advance and interest to said Phenix Bank. No reply was made to those letters, except that an interview took place between Gov. Mason and Mr. Ogden between the 15th day of May and the 15th day of July, 1839 ; of what was said in that interview, there is no direct evidence, except that the said letter of July 15th, 1839, affirms that Gov. Mason gave Mr. Ogden to understand, that the matter should receive the immediate attention of Governor Mason on his return to Detroit. The said $8,500 draft was collected by Norton or the ■aid Michigan State Bank, and the amount thereof was credited on the books of the latter to the Phenix Bank, on or about the 26th of October, 1838. The draft for $T,900 was never paid to Norton by the River Raisin Bank, and the Phenix Bank, on ascertaining that fact, by a letter of its cashier, dated March 26 th, 1840, addressed to the Cashier of the River Raisin Bank, (and received by the latter on the 2d, 3d, or said 4th of AprO, 1840,) said : "If it— the draft for $7,900— has not been paid by you, you will please refuse payment of it, as we have never re- ceived value for it; and if not actually paid, prior to this notice, we shall look to you for the amount." On the 10th of June, 1840, the said Phenix Bank em- ployed Charles H. Stewart, Esq., a counsellor at law, re- siding at Detroit aforesaid, to take charge of, and present the claim of said bank against the State of Michigan, for the said $16,400, and the interest thereon, and authorized him to take all such measures as he might find expedient for procuring or securing payment thereof. Such employ- in* Doo. ars addressed 1838 ; one da- 1839 ; one da- te give his at' amounting to leged advance [y was made to place between th day of May as said in that 3t that the said 7. Mason gave should receive a on his return Norton or the Dt thereof was henix Bank, on Norton by the on ascertaining irch 26 th, 1840, isin Bank, (and id 4th of April, »n paid by you, > have never re- id, prior to this lenix Bank em- allor at law, re- of, and present 3f Michigan, for and authorized t find expedient , Such employ- Mo. 8. 67 in* ment was evidenced by a letter of that date, from the cash, ier of said bank to said Stewart, and by his written accept- ance thereof, which letter and acceptance read as follows: New York, June 10th, 1840. To Charles H. Stbwaet: Sib— You are authorisad, as agent for the Phenix Bank, to present to the State of Michigan, for payment, the claim of the bank for $16,400, advanced on the faith of the State Bonds, in March, 1838, to John Norton, as their agent, to- gether with interest on the advance, and you will take all Buch measures as you may find expedient for procuring or securing the payment. You are also authorized to avail yourself of any proposition which may be made from any other quarter than the State, of securing the debt, or any part of it, provided that you do not act to release or weakei our claim on the State, who is our proper debtor. You may exercise your own discretion in compounding for the interest, and in taking any security oflfered by the State, and we agree to pay you for your services ten per Cflnt. on the sum you shall recover or secure for us, pro- vided, however, that if you fail altogether you shall have no charge whatever against us. We will furnish any evi- dence within oar power on demand, and shall do no act to nullify your proceedings. N. G. OGDEN, Cash, I agree to the terms above mentioned, and shall use my best efforts to advocate the claim of the Bank. CHARLES H. STEWART. Said Stewart, as such agent, siibmitted said claim to the then Auditor General of the State of Michigan, prior to the 29th of July, 1840. The said Michigan State Bank and the said River Baisin Bank, were then in a precarious condition, and their failure was regarded as highly proba- ble, that said Stewart, and the said Auditor General, i Doo. tf deemed it for the interest of the said Phemx Bank and of the State of Michigan, if the latter shonld be held liable for or shonld assnme to refund the advance so as afores^d made to said Norton, that settlements shonld be made with such Banks by accepting from them the best secnn- ties they could be induced to give ; to become eventually the property of the Phenix Bank, or of the State of Mich- igan, as the latter should or should not, or should admit its liability to the Phenix Bank and pay their said claim. In order to furnish written evidence of this concurrence of views, and on the terms on which the said Auditor Gen- eral assented to such a settlement and arrangement being made with said two Banks, the said Stewart addressed to aaid Auditor General, on the 29th of July, 1840, a letter in these words, viz : Dbtboit, July 29th, 1840. HoF. E.P.Hastings: SiB-I have submitted to you a claim made by the Phenix Bank of New York, on the State, for $16,400, being for that amount advanced on the faith of the State bonds: the advanee was made by drafts on the Farmere and Mechanics' Bank and, Bank of the River Raisin handed to John Norton as fiscal agent. The draft on the first Bank was received tod placed to the credit of the Phenu Bank by the Michigan State Bank, and that institution and the River Raisin Bank now admit their indebtedneas and offer security. The debt belongs either to the State or the Phenix Bank, and the fact will be determined ac cording to the view the next Legislature may take of the subject. You have no immediate power to settle the question, but your office makes you guardian and trustee of the State interests. I therefore submit to you whether it \>f. not expedient to take such security as can be ob- tained for the benefit of the party ultimately entitled. It may not hereafter be forthcoming, and that such accept ^» , i ■ & I No. 8. 69 ance shall not be deemed to prejudice, or in any manner affect the ultimate settlement between the State and the Phenis Bank, which shall be made as if no such security had been taken, and that I be at liberty to accept such gecnrity as in my judgment is the best to be had ; and ghall hold the same as trustee, transferring it to the State, «n case they recognize their indehtedneas, if not, then to the Phenix Bank; and that I also shall be at liberty to com- pound the question of interest with the Banks, and any settlement with them be in full discharge of their indebt- edness. I am, sir. Your most obedient servant, CHAS. H. STEWART. Said Auditor General, on the 22d of September, 1840, wrote at the foot of said letter of the 29th of July, 1840, as follows, viz : Concurring in the views above suggested, I agree to the proposal suggested, but under the express understand- ing that by so doing I do not in any manner recognize the claim nor give it any validity or effect against the State more than it now has. E. P. HASTINGS, Aud'r Gen'L And then returned said letter to said Stewart. Said Stewart, on the 23d of Sept., 1840, settled with said River Raisin Bank, and, on the 2d of October, 1840, with said Michigan State Bank, as hereinafter stated, having no authority from the Phenix Bank to make such settlement, except such as is conferred by said letter of June 10th, 1840, and by a letter dated August 4th, 1840, which last mi letter read thus, viz : ( ^fummmm ; •■mijtes.ui. -«j, ,. >^ , -.-» w i "^ It'' 'i iw hi H 1 i! n > TO Phenix Bank, J. New York, ^th August, 1840. J Ohables H. Stbwaht, Eaq., Detroit : Dear Sir-I have your favor of the 19th alt. Yon are hereby authorized to adopt all or any such measures with regard to our claim on the State of Michigan, as m your judgment shall seem right and proper, and best calculated for the security and ultimate recovery of the same. My letter of instruction of 10th June last, was, as con- Btrued by you, intended to confer all those powers upon you as the sole agent for the Bank in this matter. Respectfully yours, N. G. OGDEN, i Cashier. On the M of September, 1840, said Stewart settled with the said Uiver Raisin Bank, and at that time exhib- ited and left with it, as his authority for making such set tlement, the said lettor of August 4th, 1840, and on and ai such settlement, received the items of property next men- tioned, and gave a receipt written under a description thereof, as follows, viz : H D. Mason, bond and mortgage jxidgment, March 23d, 1840, .?! f. Six months' interest, to Sept. 23d, 1840, HO 2 H. Phillips' judgment, July 22d. 1839, 1.279 2ft One year two months one day's interest, to Sep- tember 23d, 1840, •• »^;* Levi Beebee, note due Sept. 17th, 1838 2,800 00 Two years and six days' interest, to September 23d,1840. .• f//_; Draft on the Michigan State Bank, ^°^ Balance due Phenix Bank, 17,899 55 Interest from 16th August, 1839,— one year, one month, seven days,— to 23d September, 1840, ^ ^^ ^^^^^^ j^ V h No. 8. 71 Received, September 23d, 1840, of the Bank of River Raisin, eight thonsand five hundred and ten dollars and fifteen cents, as above, in full payment of their indebted- DBBS to the Fhenix Bank of New York, for moneys collected on their account. CHAS. H. STEWART, Attorney and agent for the Phenix Bank, He also exhibited to such Bank, prior to said settlement, the said letter of June lOtb, 1840, and said Bank not deem* ing that a sufficient authority for said Stewart to act in be- half of the Phenix Bank, in making such settlement, the said letter of August 4th, 1840, was procured, presented to, and left with said River Raisin Bank, as aforesaid. On the 2d of October, 1840, the said Stewart settled with the Michigan State Bank, and thereupon executed a paper, (showing the terms of such settlement,) as follows, viz : The Michigan State Bank, Detroit, To The Phenix Bank, N. Y., Db. 1838, March 13th. For onr draft on the Farmers and Mechanics' Bank, Detroit of this date, 18,500 00 Interest on above, compromised by agreement, 500 00 Draft on River Raisin Bank on you, in favor of Charles H. Stewart, our agent, 155 53 $9,155 53 dr. By Illinois and Michigan Canal scrip, $500 00 By conveyance of 2,397 . 40 acres of land in Sagi- naw County, by agreement, in full, 8,655 53 $9,155 53 Received the above in full discharge of the foregoing account. CHARLES H. STEWAKT, Att'y and Agent for the Phenix Bank, N. Y, Detroit, Oct. 2d, 1840. m r •'■tff !'l III 72 Doc. I ' sv^S* li i t ' 'I 'ifii ^ The said Michigan State Bank executed to said Stewart a deed, (as party of the first part thereto,) dated Oct. 2d, 1840, for the consideration (as expressed therein) of $8,500, and also of f 155, by which it conveyed to said Stewart the said two thousand three hundred and ninety-seven acres and forty one-hundredths of an acre of land, (2,397.40,) " subject, however, to the taxes and charges now (then) due and assessed upon said lands, and iu trust for the Phenix Bank of the city of New York, or for the Auditor General of the State of Michigan, whichever shall assume the debt thereby, settled by the party of the first part," the said Michigan State Bank. This deed was recorded on the 6th of October, 1840, in the proper county. When this settlement w-'s concluded, said Stewart informed the said Auditor General of the terms of the settlement so as aforesaid made with that Bank, and so also of the one so as aforesaid made with the said River Raisin Bank. Said Stewart, as agent of the Phenix Bank, presented said claim to the Legislature of the State of Michigan, at the sessions thereof, held in 1841, 1842, 1843, 1844, and 1845, and said Stewart stated to the committees of the said Legislature, to whom said claim was by said Legisla- tures referred, the settlements which he had so as afore- said made with said River Raisin Bank, and the Michigan State Bank, and their nature, and argued that by virtue of those arrangements the State of Michigan would reap the benefit of the securities he held, in case the State sat- isfied the claim of the Phenix Bank. The statement of the claim, as presented to the Legisla- ture of Michigan, as aforesaid, in 1841, was in writing, and detailed the facts in which the claim had its origin, and stated that the draft on the Farmers and McchanicB' Bank was paid to Nor too, and credited by him to the. Phenix Bank, and not to the State, and that the draft 76 Doo. Bamoas last aforeBaid, containing ninety-seven 38-1 '^Oth acres • the north (ructfonal part of northwest fractional quarter of seoiiou niirabor 4, township and range same as last aforesaid, containing ninety-seven 4-lOOths acres; the fra-.tional section nnmber 3, township ten inrth range two east, containing seven hnndred and sixty-three S-lOOths acres; subject, however, to rav ' .x, liens, or sales i.r taxes of any of the foregoing premises ; together with aU and s'ngnlar the tenements, hereditaments and appurte- nances the'ennto belonging, or in anywise appertaming, and the reversion and reversions, remainder and remain- ders, rents, issues, and profits thereof; and also all the estate, right, title, interest, property, possession, claim and demand whatsoever, as well in law as in eqmty, of the said party of the first part, of, in, or to the above described premises, and eve: v part and parcel thereof, with the ap- pnrtenances; to have and to hold all and singulai Ae above mentioned and described premises, together with the appurtenances, unto the said party of tho second pai^ their successors and assigns forever. And the said party of the first part, and his heirs, the said premises, in the quiet and peaceable possession of the said party of the second part, their successors and assigns, against the said party of the first part, his heirs, and against all and overy , person and persons whomsoever, lawfully claiming or to claim the same by, through, or under him, shall and wiU warrant, and by these presents forever defend, except aa to tRX liens and sales. „ , ,. . * . *i> In witness whereof, the said party of the iirst part hath hereunto set his hand and seal the day and year first above ''"*^^°' CHAS. H. STEWART, [L. S.] Sealed and delivered ) in presence of J A. G. NOBWOOD. i^ No. 8. 77 State of New York, City and County of New York, «». On the seventh day of Augnst, eighteen hundred and fifty-two, before me came Charles H. Stewart, to 'ne known to be tho iudivWual described in and who executed the within indenture, aud acknowledged the same to be his sot aud deed. A. G. NORWOOD, Oommmioner of Deeds, The said Phenix Bank, on the same 5th of August, 1852, exocnted a deed ot Bettlement and release between said Bank and said Stewart, which was also executed by said Stewart, and delivered on the day of its date, and reads thoB, viz : This agreement, made the fifth day of August, A. D. 1852, between the President, Directors and Company of the Pheni: Bank o the city of New York, of the first part, and Charh H. Stewart, foi merly of Detroit, but now of Washington City, of the secoad part, Witnesseth : Where- as, on the 10th day of June, A. D. 1840, the said Bank employed the party of the second part as its agent to . prosecute a certain claim for 16,400 against the State of I Michigan, with a contingent interest of ten, afterwards in- 01 1 mA to twentv per cent., and certain powers to saii agent; the said claim consisting of an advance by tie Bank to John Norton, Junior, cashier of the State Bank of j Michigan, for the State ; [ And wheiju?, the said • Ivance was made by the order of the Fhenix Bank on ti.o Farmers and Mechanics Bank and the Bank of River Raisin, the order on tne first being I paid, and the second unpaid ; And whereas, the party of the second part was subse- qnently authorized by the sa-d Phenix Bank, and the I Auditor General of the State of Michigan, to take any laecurities in Ms discretion from eithe, of the vUimfte debtors nntlie matter, and to hold the same for the Ph' \ Bank lor the State pf Michigan, whichever would assame th& r"% ':4l 78 Doo. lih' i \ ri debt And por.«»nt thereto, the «»id party of the eeocd part did Bttbsequently take Bome eeoarife. froo. the ...4 TartieB, and among then, the land here.nafter menfone^ „f all which, and of his proceedingB m the matter tbs i:;„7!;::B'eoondpartd«IyinformedtheB^dPhen,xB»V irom time to time, reference being here made to h^ kU^, And whereaB, the .aid Bank now doBireB the cancelmenl./ tie interest and rights of th. parly of the second part, and po«,essim of aU the paper, in the ca.e, indudng to »A« lere acquired hy the .a« party, with to argum^t. a,^ fads And the Baid parties have Bnally conclnded dl therVormer relationB, and all qaestionB between them,» " Nw therefore, this agreement witnesBeth : That tli. said party of the second part, for the conBiderat.onB »rte, nientioned, herewith tran.ferB and delivera to the party ol the first part all the papers in his poBBesBion pertam.ng I, the aforesaid claim, including his legal argnment and tk. resnlt of his researches in the matter, tho particnlars being specified in saparate inventory and receipt. And doth hereby also covenant, promise, and agree to and with the party of the first part, that he, the party .1 the second part, shall and will convey »» t^e party of H. first part, or their Pre.ident for them, aU the lands .. pre Jses conveyed to him by deed bearing date the second day of October, A. D. 1840, eMcnted by George S. Porte., President of the State Bank of Michigan, and recorded- the Register's Office, in Saginaw connty, on the 6th day .1 October, A. D. 1840, in deed book B, on pageB 321 and 32 aa fnlly as the same were so conveyed, and free from al^ ijicnmbrances by him, the party of the second part exc.pt taxes : and as to them, the said party covenants and agre« that he will procnre the said lands to be c eared from j tax incnmbrance, and from the title of any alleged tax pn chasers without charge for his own services the party J the first part doing as after mentioned on their part, ..d No. 8. 19 will also give any reqaisite explanation in the premiaes. And the party of the second part, in consideration of the payment, release, and agreements hereafter mentioned, re< leases, remises, and forever discharges the party of the first part from all claim or demand whatever in the premises either for professional service, money spent, and interest in the claim or control of the proceedings or otherwise, however. And the party of the first part, in consideration of the covenants, services, transfer, and release aforesaid, agree to pay the party of the second part on execution hereof the sum o^ five hundred and twenty -five dollars, and to pay on demand all money which the party of the second part may find to be necessary for clearing the tax- titles and taxes aforesaid, including any charges made by others for local services, and any expenses actually '.ncurred by the party of the first part for the considerations above, hereby remise, release, and forever discharge the party of the second part of and from all claims, demands, accounts, and responsibilities whatever in the premises, except the matters and things herein and hereby agreed to be done, and for ail other demands whatsoever. In witness whereof, the party of the first part hath caused its President to execute these presents, and attached hereto its corporate seal, and the party of the second part hath set his hand and seal, the day and year first in these pres- ents written. T. TILESTON, [L. S.] President. CHAS. H. SEW ART. [L. S.] Witness — John Parker, [l. a.] The State of Michigan never assented to, or had any no- tice prior to January Ist, 1855, of the execution of either of said deeds of August 6th, 1852, of the said acts and doings of said Stewart in respect to the securities bo as aforesaid received by him, on his said settlement with the r Vi^jj ^.i ^ik a iaa teategsa 80 Doc. m ,# ^ 1 ■ :! *:■ 1^- t 1 1 i L ,1 jr ?| !■ 1; j i| I #. ' w L' S ^ mi ■ said River Raisin Banls, or of the notice so as aforesaid given by said Phenix Bank to the River Raisin Bank, not to pay the said draft for $7,900 so as aforesaid advanced to said Norton. Section 31 of Article one, and section fonr of Article eight, and section one of "Schedule," of the Constitution of the State of Michigan, which took effect on the first of January, 1851, reads as follows, viz : § 31. Act 1. "The Legislature shall not audit nor allow any private claim or account." §4. Acts. "The Secretary of State, State Treasurer, and Commissioner of the State Land Office, shall constitute a Board of State Auditors to examine and adjust all claims against the State, not otherwise provided for by general law." * * * * Schedule, § 1. "The common law, and the statute laws, now in force, not repugnant to this constitution, shall re- main in force until they expire by their own limitation, or are altered or rei jaled by the Legislature." Section two of a statute of the State of Michigan, ap- proved January 26th, 1848, reads as follows, viz : Section 2. "It shall be the duty of the Attorney General to appear in behalf the State, before the Board of State Auditors, when they shall sit to audit claims against the State ; and to that end, said Board shall give said Attorney General timely notice of the time and place of their meet- ing to audit such claims." By an act of the Legislature of the State of Michigan, approved April 7th, 1861, sections forty-four and forty- seven of the Revised Statutes (of 1846) of said State were amended to read as follows, viz : (Sere the Judge inserted a copy of the Act of 1851 orgwr iaing the Board of State Auditors under the present Consti tution ; to he found in the Session Laws of 1851, p. 173, ami in 1 Comp. Z. P' 145.) Doc. No. 8. 81 ■y as aforesaid [sin Bank, not d advanced to )ur of Article ) Constitution on the first of adit nor allow ^te Treasurer, ihall constitute Ijust all claims for by general ) statute laws, ation, shall re- a limitation, or ' Michigan, ap- i, viz : jorney General Board of State as against the ) said Attorney I of their meet- te of Michigan, •four and forty- said State were i of 1851 organr ? present ConsH. L851,^. 173, bank, at foot of the copy of said letter : Received of the Phenix Bank the above letter. JNO. NORTON, Gash. That the said payment was solicited by the said Norton, as an advance to the State on the said bonds, and made to and received by him as such, as appears by the above let- ter and receipt. That the Governor subseqnently entered into a negotia- tion with the Morris Canal and Banking Company for a disposal of the s».id bonds, and during the progress of the negotiation applied to deponent for possession of the bonds which were requi^ied for its success, promising to repay, out of the proceeds the advances made to the State ; that in addition, it was also agreed and understood that all these proceeds and the State deposits were to be made at the Phenix Bank, and the deponent's recollection of that fact is confirmed by a memorandum to that effect made by him at the time, in answer to an inquiry propounded by Mr. Norton, as to the mode of repayment of the Michigan funds to the Phenix Bank. That deponent accordingly, on the faith of the said promises, and the faith of the State, pledged by their Governor in due exercise of a power delegated by statute, gave up all such bonds which were negotiated with the Morris Canal and Banking Company; that Messrs. Prime, Ward & King having advanced their $150,000 by drafts on London, at sixty days, then comiag to maturity, became very urgent for a repayment by the 1st of May in said year, (1 838,) and wrote several pressing letters to deponent, who, on his part urged the Governor, and received promises of payment from day to day, which were at length fulfilled, and the money paid by an advance procured from the Morris Canal and Banking Company; but the debt to the Phenix Bank not being equally urgent, No. 8. 85 was allowea to await further payments from the said com- pany, and never has, in fact, been paid, nor wa« any de- posit made m the Phenix Bank by the State of Michis-an nor to their credit ; that the said loan was not to the Mich' igan State Bank, with whom the Phenix Bank had no deal- iDgs nor interconrse, past or prospective, nor were the drafts given, as subsequently alleged, for collection, for the money was collected, and in banks equally satisfactory to the Phenix Bank, but the transaction was exclusively with the State, or on the faith of the bonds then in deponent's possession ; that there was an express contract made by and With the Governor, by letter of deponent to him of 18th September, 1837, and duly accepted and ratified by him that the proceeds of the loan and the State deposits wer..' to pass through and be made in the Phenix Bank. And further deponent saith not. j. PELAPIBLD. Sworn and subscribed before me, a Notary Public of the A n tf!r 7°'^' ^* *^' '^'^ "^*^' *^J« iOth day of June, A.D 1840, the deponent having also subscribed his name to the preceding part of this deposition on a separate sheet '^ P*P®^- KATHL. DYETT, [L. S.] Notary Public. I, N. G. Ogden, Cashier of the Phenix Ban' 'ew York certify that the advance made by the said Bank of sixteen thonsand four hundred dollars, in March, 1838, to the btate of Michigan, stands regularly charged on the books t^e Bank to tLe debit of "J. Delaileld, agent for the State of Michigan," in which account is also entered a fur- ther advance made to the StPfr by Prime, Ward & King, of $150,000, the State beiL^ .edited with the amount thereof when deposited, and charged therewith when paid out on the draft of Stevens T. Mason, Governor. WitnesF, my hand and the seal of said Bank, \.^' S.] at the city of New York, this 10th day of June, A, D. 1840. • N. G. OGDEN, Casy^r. ^fTiwrnaiBpBF^ * ,1'_ s 8« ^0; n To THE Board of State Auditors: Gentlemen-l have the honor to lay before you, for your coneideration, a claim of the Phenix Bank of New York city, against the State of Michigan. The long standing of the claim as well as the amount will entitle it to your full- est investigation. I do not hesitate to invite such inquiry^ for, if the claim is not v^ell founded both in law and equity, I ask nothing at youv hands. . ^v i. . The facts of the case, and which will be fully established by the proofs I herewith submit, are as follows : The claim of the Phonix Bank is for the sum of $16,400 advanced to the State, on the 13th of March, A. D. 1838. This advance had its origin in the transactions growing out of the Five MUUon Loan, authorized by act of March 2l8t, 1837, [Laws 1837, page 152.) By this act. Governor Mason was entrusted with the execution of the negotiation of this loan. The terms, conditions, &c., of the negotia- tion of the loan was left entirely to his judgment, except in the following five particulars : Ist. The loan was not to exceed $5,000,000. 2d. To be redeemable at the pleasure of the State. 3d. As to the rate of interest. 4th. The loan was for internal improvements. 5th. The bonds were not to be sold below par. Thus authorized, the Governor entered on the execution of his trust, and the following chronological table will be ugeful in this inquiry : May 1st, 1837.— Governor Mason committed the whole negotiation to John Delafield. (See copy of letter hereto annexed, "A.") ^ September ISth, 1887.-Mr. Delafield apprised Governor Mason that he had made arrangement with a houBe to eflfect the sale of the bonds in London, and one cf that house (Mr. Kmg) would immediately go to London for that pnrpose. In the meantime $150,000 were to be advanced to the State on the bonds„ (See letter annexed, " B.") No. 8. 87 Octohevy 1837. — Mr. Kiog went to London. January, 1838. — Governor Mason, in his annual message for this year, states the principal facts. (See Message 1838.) January Qth, 1838.— Governor Mason sold 1500,000 of State bonds to Oliver Newberry who sent them to New York for sale. (See Public Documents.) January 6th, 1838. — Governor Mason drew two drafts, one for $90,000, and one for $160,000, which was to be Advanced to the State, pending the negotiation of tho bonds. • Soon after this, the London capitalists, alarmed by the appearance of other Michigan bonds in the New York market, broke oflf their negotiation with Mr. King, and refused to have anything further to do with the loan. Mr.. King accordingly came home in disgust, refused to advance the $150,000 as agreed, and Governor Mason's drafts were therefore protested. February im, 1838.— Governor Mason sent John Nor- ton, Jr., Cashier for the Michigan State Bank and fiscal agent of the State, to New York, to make some provisions for the protested drafts. February 2m, 1838.— Governor Mason, in piarfiuaiice of an arrangement made with Norton, on the evening of his departure, T^rote to Mr. Delafield to furnish Norton further funds out of the loan. (See copy letter annexed, " C") Norton succeeded through Mr. Delafield in raising the $150,000 to take up Governor Mason's drafts by the drafts of Prima, Ward & King, on London, pt sixty da^ i. He also obtained an advance from the Phenix Bank by two drafts of that Bank, one on the Farmers and Mechan- ics' Bank, at Detroit, for $8,500, and the other on the Bank of the River Raigin, for $7,900, making $16,400, the sum now in question. Both of these advances were made expressly on the faith t f ^■f 88 ^^• and secnrity of the bonds deposited in the hands of Mr. Delafield. (See Mr. Ddafie^'s Affidavit.) For the 116,400 advanced by the Phenix Bank, Norton expiessly receipted as advanced on account of State Bonds deposited with Mr. Delafield. {See oopy in DdajiMk Affidavit.) June 4th, 1838, Governor Mason made his sale of all the bonds to the Morris Canal Company ; out of the proceeds of this sale it was proposed to pay Prime, Ward & King for their advances, and the drafts drawn for which were thus become 'or becoming due ; but it was necessary to get the bonds which were in Mr. Delafield's hands, to pass them over to the Morris Canal Company ; for this purpose Governor Mason, by written order, directed Mr. Delafield to hand the bonds over to Mr. Romeyn, saying, that the latter woald hand him the "amount of Prime, Ward A King's charge, and account for advances to the State." (See copy of Governor Mason's letter, " D.") On this order Delafield delivered up the whole of the bonds held by him; and thus the Phenix Bank was left without any security for its advances, except the honor and faith of the State. The bonds were delivered up by Mr. Delafield on an express promise that out of the proceeds of the sale to the Morris Canal Company, the whole advances should be re- paid. It was further agreed that all of the proceeds of that sale should be deposited with the Phenix Bank; on these pledges the bonds were surrendered, but not a dollar was ever deposited with the Bank, and their advances have never been to this day repaid. (See Delafield's Affidavit.) At this very time, Governor Stevens T. Mason acknowl- edged the nature of this transaction by a letter, of whicli the following is a copy : No. 8. 89 "New York, Jane 4th, 1838. Smr—John Norton, Esq., having received from yon two draftB, one on the FarmerB and Mechanics' Bank, of De- troit, for 18,600, and the other on the Iliver Raisin Bank for $7,900, in adjusting our accounts, it becomes important to state, that when I left home-, according to my impres- sion, those drafts were not collected, but so soon as I learn that Buch is the case, I will cause the amount to be remit- ted to you. " Yours, respectfully, "S. T. MASON. "John Dblapiild, Esq." The State seems to have had occasion to spend money faster than they got it, and Governor Masou did not keep I his promise. The Bank, by its Cashier, Mr. Ogdeu, commenced dun- •ning Governor Mason in November, 1838, and I annex a series of letters which show that the Bank urged their claim early and earnestly. Now, I believe I have established most unequivocally— let-That Governor Mason was authorized to obtain money on the bonds of the State. 2d-That he authorized John Norton, the Cashier of the State Bank, the Fiscal Agent of the State, to receive from Mr. Delafield advances, or money upon said bonds, or out U the proceeds. 3d-That Mr. Delafield obtained $16,400 from the Phe- fix Bank, and Norton, as Cashier of the said Bank and as fnch Fiscal Agent, (the precise capacity in which he was ■Accredited to Mr. Delafield by Governor Mason,) receipted r such sum as an advance made on said bonds. 4th-That said transaction was, in the June following |pres8ly recognized by Governor Mason as done by his pithority, with his approval, and on account of the Slate. te 5th-That the security held by the Phenix Bank for leir advances was given up on the plighted faith of Gov- 90 Doo. in< r1 *'. k i •i' aid oat of said le Phenix Bank n of the Board 10th, 1837, («ee EtepreBentativeB J^orton, Junior, nd he is hereby No. 8. 91 n accredited to authority from ;on held his from id it was officers e Phenix Bank ,y who could ren- if it failed in tk erial facts, I be- vho would not at i be met at once. /^as made for the btain it, ai. 1 upon )roceed to inqnire im. ence that I have number : lis advance to tte lank had and conH kept his account! Had he embezzled been no answer to I could quotd ^ iges of legal authority to sustain this, butitwoul' be an insult bo*h to '^o common sense and to the consoi ace of this Board, for mo to argue^this prop- osition. Besidi -), the claim of the Phenix .nk irises not from the time an entry might be made to the credit of the State, but from the moment a ad> oe was made. Still further, the iiJxecuuve of the State actuaUy knew of the advance soon after it was made, which was equivalent to an entry or credit as between the State and its Fiscal Agent. /Second— That the draft on the Bn of the River Raisin wasneverpaid, (for it is conceded that the other draf was paid.) I do not know how the facts were, nor i it at all material. The answer to this objection is apparent. Had not the j Phenix Rank the funds in the River Raisin Bank ? And ' did not Norton present the draft, demand payment, and if payment was refused, protest the draft and notify the Phe- nix Bank ? : Delafield's affidavit shows that the funds were in the 5 Biver Raisin Bank, and there is no pretence that payment was ever refused, and the draft protested and the Phenix : Bank notified. Now, no principle of mercantile law is better settled than this, that if a person having funds in the hands of a second party, makes a draft on those funds payable to a third person, or his order, and the payee neglects duly to present the draft, demand payment, and, if payment is re- I fused, to protest the paper, the paper becomes absolutely I his own ; and if the drawee afterwards fails, and the funds- I are lost, the payee cannot resist the claim of the drawer. I As between the drawer and the payee, under such cir- I cnmstances, the draft becomes the same as so much moneys I paid. I therefore Jay it down as an unquestionable legal prop* >-• \ IMAGE EVALUATION TEST TARGET (MT-3) 7// 4f. V m c & «i fy. f/. 1.0 I.I 1.25 '"M 2.2 i. ^ III 1.8 U 1111.6 Photographic Sciences Corporation JGN^ ,\ :\ \ 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 % 6^ ^ '^4," is the letter of instrUfCtit^ from Governor Mason to John Delajield, dated May 1, 1837, already copied into the Judge^s finding of the facts.) a B." f * Correspondence {copies of iMters) from J, Delafield. New York, 18th September, 1837. To His Excellency Stevens T. Mason, Governor, dc, De- troit, Michigan: Sir — Within the past few days, I have brought the Michigan loan authorized by an act of the Legislature, ap- proved on the 21st of March last, to the notice of the capitalists of this city, assuming the responsibility of in- creasing the rate of interest, as suggested in your letter of Ist July. The negotiation, as it now stands, embraces the whole loan of five millions, at the rate of one million each year. One hundred and fifty thousand dollars shall be ad- vanced and paid to J. Delafield, at the Phenix Bank, in I No. 8. 96 rovernor, dc, Bt New York, for the State of Michigan, nnder the authority now held by him, which payment shall be made on or before the first day of February (qr.) next, or at an earlier period, if desired by the party paying the money. The bonds to be delivered in New York on payment being made therefor, or security lodged with the Phenix Bank for the amount thereof. One of the parties will forthwith proceed to Europe for the proper and effectual disposition of the whole loan, in accordance with the law, to be modified in the manner stated by you in your letter of the Ist July, and especially as regards the interest being payable in sterling, and both principal and interest in London, in which case ^m per cent, would be the nominal rate of interest. A reasonable compensation to be allowed r the nego- tiation of the whole loan, with its management abroad and at home. It is stipulateJ that the money shall be placed to the credit of the State in the Phenix Bank, at a rate not less than the par value of the bonds; and if they are in sterling money and the interest at five per cent., as above i stated, payable both in London, then the rate to be fixed at 14 44 per pound sterling. The payments shall be made in the Phenix Bank within months after signing of the contract in Europe for the first million of dollars, except so much as is to be paid m New York on or before February next, as above stated, and each successive annual instalment shall be paid in New York within months of the annual period, dating from the day of the first contract in Europe. If this arrangement for the negotiation of the whole loan is acceptable to you, it will be accomplished by my friend James G. King, Esq., of the house of Prime, Ward <'>»«''' lately ame . ^ ^ S. T. Mason, Omermr, dec. .- ^™ Januaby, 1838. It wai be important to fi^ a rate of exchange, or name a rate on behalf o the State, to be assumed as ; basis to n>ake the final contracts, that we may be assured of return- n>gaMl value to the State. Believing that we can not rely on the continuance of present rates, I would suggest to your Excellency a rate of say 8 per cent. It may and probably will be reduced to 5 per cent.-a rate too low for bo benefit of the State. Exchange is now 9 to 9J, and I think 8 percent should be the minimum rate assumed as basis for negotiation final. Ton will perceive that does not bind. "C." (Private.) (Copy.) Morris Canal Office ) Join Delafield, Esq. : ^''' ^^''^' "^^'^^ ^^^'' ^838. [ SiR-You will deliver to Theodore Romeyn, Esq th« whole amount of Michigan bonds in your posset ^ =^i ■4^ *rt' \ : * 98 Doo. twelve hundred thoueand dollars at six per cent, stock.) Mr. Romeyn will hand you the amount of Prime, Ward & King's charge, and account for advances to the State. Respectfully, Your obt. servt., STEVENS T. MASON. Received, New York, June 4ih. 1838, of John Delafield, Esq., the entire amount of Michigan State Bonds, hereto- fore placed in his hands as Agent. ^ S. T. MASON. No witness was examined orally, by or before said Board in respect to such claim. The Attorney General of the State of Michigan was no- tified by the said Board of State Auditors of the presenta tion of such claim, and was requested by said Board to appear before them in behalf of said State, and said Board gave him timely notice of the time and place of the meet- ings to audit said claim to enable him to attend before said Board, but he did not attend before said Board in respect to said claim. The said Board kept said claim, and the said evidence submitted in support thereof, under advisement, until the 2d of December, 1854, on which day the said Board, at a regular meeting thereof, all the said members thereof be ing then present, did conclude and decide, upon the evi dence submitted to them, and by them received in support of such claim, that said Phenix Bank was justly and equi tably entitled for principal and interest on said claim, from March 13, 1838, to December 2d, 1854, to the sum of $35, 603 74. And thereupon on said 2d day of December, 1854, tlit said Board of State Auditors entered upon the record of ite proceedings, in relation to such claim, as follows, viz: « Claim of the Phenix Bank of New York against th« State of Michigan for an advance of $16,400 on State bond^ , off cion Micl eith( beri said menl ofth nix I Th Mr. I tothi he W( No. 8. 99 delivered to John Norton, Jr., Cashier of the Farmers and Mechanics' Bank," (meaning and intending the aaid Michigan State Bank,) "Detroit, by order of Gov. Mason, for nse of State March 13th, 1838, and the interest thereon the Board decided that npon the evidence produced said Phemx Bank was justly and equitably entitled, for piinci- pal and interest on said claim, March 18th, 1838, to Decern- bar 2d, 1854 to the sum of $35,603 74," (meaning and in- tendiDg thirty-five thousand six hundred and three dollars and seventy.four cents,) which sum the said State of Mich- igan paid to the said defendants, for and on account of said false and fraudulent claim, on the fourth day of December. A. D. 1854. The State of Michigan, on the 4th of December, 1854 in pnrsnance of said decision of said Board of State Auditors 8Dd m satisfaction of the said sum, so as aforesaid decided by said Board to be due to said Phenix Bank from said , State, paid to said Phenix Bank, the present defendants, the I said sum of 135,603 74. I The members of said Board had not, nor had either of them, at the time said claim was presented, or while the same was under consideration, or before the aforesaid de- cision thereon, or before payment by the State of said sum of 135,603 74, any a.^.tual notice, or knowledge, or suspi- cion of the settlements so as aforesaid made with the Michigan State Bank, and the River Raisin Bank, or with either of them, or of the existence of the said deed of Octo- ber2d, 1840, or of the said deed of August 5th, 1852, from said Stewart to the old Phenix Bank, or the deed of settle- ment and release between them of last said date, or of any of the aforesaid acts of said Stewart as agent of the old Phe- nix Bank. The allegations in the said written communications by Mr Lothrop to said Board of State Auditors, that the debt to the Phenix Bank never has in fact been paid, and that he would fairly^and fully state to said Board every defence -*\ r 1 \\Ci : I' 1 ' ( I J 51 IM, II ..r i) .? V' I'i' ^' J I r^^ i i\^ » :,' ■ myi^. i 100 Doo. he had ever heard hinted at, and the statement which he did therein make in regard to the alleged or supposed de- fences ; and his omission and the omission of said Phenix Bank to notify said Board of the said notice, given by the Phenix Bank to the River Raisin Bank, not to pay said draft for $7,900 ; or of the settlement made by said Stew- art with said Bank, or of the said settlement made by him with the Michigan State Bank ; or of the collection by said Stewart of some part of the said securities so as aforesaid received by him from said River Raisin Bank, and of his substitution of the residue thereof for other property, with the assets of said Phenix Bank ; or of the said deed of con- veyance from Stewart to the old Phenix Bank, of the date of August 5th, 1852 ; or of the said deed of settlement and release between said Bank and Stewart, of the date of Au- gust 6th, 1852, were designed and intended to mislead the said Board of State Auditors as to the actual facts and merits of the case relating to said claim ; and that such al- legations were made, and such omissions were practiced, in the full belief that if the actual fact of the case, or sncli notice thereof as would lead to inquiry, should come to the knowledge of said Board, the said claim would be rejected and disallowed as unfounded in justice or equity. There was no negligence on the part of the State of Mich- igan, or on the part of the members of the said Board of State Auditors, in not having obtained notice or knowledge, before said claim was presented to, or while it was pend- ing before said Board, of the aforesaid acts and doing of said Stewart with the assent of the old Phenix Bank in re- spect to the securities so as aforesaid received from said River Raisin Bank, on the said settlement had with such Bank ; or of the said two deeds of the date of August 5t 1852, or either of them. Neither the old Phenix Bank, nor the present Phenix Bank, ever received or was paid anything from, out of, or by reson of the property and efifects taken by said Stowart No. 8. ! •** 101 i ■ * on BaidBefctlemeuts which said Michigan State Bank, and said River Raism Bank, or with either of them, nor waa any of the property ao as aforesaid received by said Stew- art on such settlements ever transferred, in any manner or for any purpose, to the old Phenix Bank, or to the pre' sent Phenix Bank, except that so as aforesaid conveyed by T IZf.^J^" '^^ ^^'""^ ^^"^' ^y *^« «-d deed of August 5th, 1862. On the 9th of May, 1866, before the commencement of the present action, the State of Michigan by the Attorney General of the said State, demanded of the defendants in this action, that they should pay and refund to said State the said sum of $35,603 74, with interest thereon, from the' 4th day of December, 1854, which the said defendants re- fused to do, and the defendants have not so refunded, or paid to the said State, or any part thereof. And hereupon the said defendants, by their counsel, duly excepted to each and every of the findings of fact of the said Judge. NO. 16. II THE JUDGE'S CONCLUSIONS OF LAW. l8t. There was never any liability in equity and good , con^ienceon the part of the State of Michigan to the Ihe- |nix Bank, ^ pay or refund to the latter the $16,400 which I advanced to John Norton, Jr., on the I3th of March, «|1838, or any part thereof. 2d. The collection by Stewart of moneys from and upon Wie securities which he received from the River Raisin Bank on hs settlement with that Bank, and his substitu- I n of the residue of such security with the assent of the pemx Bank for other property, without the assent of or l!'% ..'.?*"*' "^^^°^^^^°' ^^d t^« subsequent re- ease of the 5th of August, 1852, by the Phenix Bank of k, r "^^pp 102 Doo. « 4| I '^ all liability of said Stewatt as 8uch agent, discharged the State of Michigan from all liability at law or in equity (if any previonsly existed) to repay the Phenix Bank any snm whatever by reason of the original advance to Norton of the said draft for $7,900. 8d. The conveyance on the 5th of August, 1852, by Stew* art to the Phenix Bank, at the request of the latter, of the real estate which the Michigan State Bank conveyed to Stewart on the 2d of Oetober, 1840, in payment and 8atii< faction of its liability as the recipient of the proceeds of said draft for $8,500, without the consent of, or any subse- quent notice thereof, by the Phenix Bank to the State of Michigan, was an acceptance of such property by the i ue- nix Bank in its own right, and in its own account, and dig* charged the Str^te of Michigan from all liability at law or in equity to the Phenix Bank (if any such liability pre- viously existed) to pay to the Phenix Bank any sum what- ever, by reason of its advance to Norton, on the 13th of March, 1838, of said draft for |8,500. 4th. It was the duty of the Phenix Bank to communicate to the Board of State Auditors of the State of Michigan during the pendency of said claim before said board, infor- mation of the acts of Stewart in relation to the property received by him from the River Raisin Bank which had been done with the assent of the Phenix Bank, of its set- tlement with, release of Stewart by the deed of August 5tli, 1852 ; and of the conveyance of the same date by Stewart to the Phenix Bank of the property which the Michigan State Bank had conveyed to Stewart by the deed of the 2(1 of October, 1840. 5th. The decision of the Board of State Auditors, on the 2d of December, 1854, being contrary to law, equity,! and good conscience ; and having been procured by franii practiced on behalf of the present defendants in the pro- ceedings before said Board in the prosecution of said claim, and the members of said Board and the State of Michigan ^\ ' ! No. 8. 108 being then ignorant, withont any fanlt or negligence on their part of the existence of either of said two deedo of the date of August 6th. 1852, or of the collection of Staw- art prior to the date last named of money upon some of the securities received by him from the River Raisin Bank or of his substitution with the assent of the Phenix Bank of the residue of such securities for other property; the said decision of the Board of State Auditors should be de med to be and is null and void ; and the plaintiffs are entitled to recover from the defendants the $35,603 74, which was paid by the former to the latter on the 4th of December 1854, in pursuance and satisfaction of said decision, with interest thereon from the day last named until paid 6th. The plaintiffs are entitled to recover their costs of this act on from the defendants. I SUPERIO. COURT OF THE CITY OF NEW YORK. J Jndgment. Tke People of the State of Michigan, agst. The Phenix Bank of the city of New York, , This action being at issue, and triable by the Oonrt with- W * '7' ^t i^V""^ °' ''"* '""<" °f ^^ ''»™g been (the Oonrt, the Hon. Joseph S. Bosworth, Chief Jostioe' irnt"f'''^'\^°T''''""'"''S h« been filed „itl^ he Clerk, whereby jndment is ordered for the plaintifi for the sum of fortyseven thonsand nine hnndred and fif^! r r^ ^ '"^'y*"' "«"*». fg^tter with the plai^. I tiffs' cost of this action: Now on motion of J. L. Jernegan, Esq., of oonnsel for State of M.ch.gan the plaintiffs, recover of the Phenix B»k f the ..ty of New York, the defendant,, the efo,e.«" X '^°'*^-»'™° «""'»"«1 nine hnndred «>d fifty-fonr Mar, „d twenty-fonr cent., together with the .nl rf W:} ! I 1 i': 1 |i / i i • V ■■ : m I 104 Doo. No. 8. • 1 f l^nndred and sixty dollare and eighty-eight centi "mof forty-eight thonsand eight hnndred and fifteen dc*| lars and twelve cents. New York. November 28tli, 18&». _„^_._ ^, , jsew I OTJt, ^^^ ^ MAXWELL, Cteri. { K-:) :■!!; n h I : V .; ill i ill^ : ' i ■| hiiM id i Doo. No. 8. ;hty-eiglit centil lo whole to thel I and fifteen M\ WELL, Ohrh