Rnnk ■■ /i/ 7\ y / THE -«GREAT LIBEL CASE //• ■• GEO. OPDYKE <'^- THURLOW WEED. A FULL REPORT OP THE. SPEECHES OF COUNSEL, TESTIMONY, ETC., ETC. NEW YORK: THE AMBKICAN NEWS COMPANY, No. 131 Nassau Stkeet; 1865. .r". Vf3 7 • .or PRESS OP WYNKOOP & HALLENBEGK, No. 113 FoLTON- Stkeet, N. T. £/ THE GREAT LIBEL SUIT. OEOROE OPDYKE agst. THURIiOHr IVEED. Before Judge Mason and a Juiy. FIRST DAY. / TUESDAY, DECEMBER 13tH, 1864. This case came on for trial to-day. The Court room was quite full. David Dudley Field and ex-Judge Emott appeared as counsel for the plaintiff, and Wm. M. EvARTS and Edwards Pierrepont for defendant. EMPANNELINa THE JURY. Mr. Opdyke was early in attendance, and arrived in company with his counsel, David Dudley Field, ex-Judge Emott, and William F. Opdyke. The defendant, Mr. Weed, did not arrive until the calendar lyas called. He took a seat beside his counsel, William M. Evarts, ex-Judge Pierrepont, and E. M. Blatchford, and looked remarkably well. The calendar having been disposed of, the Court inquired if the counsel were ready to proceed. Mr. Evarts — I suppose we shall be ready to proceed with the trial. I have a long list of witnesses, and cannot tell who are present unless the clerk calls off the names. For such of the witnesses as are absent I shall move for attachment. Judge Mason — Well, enter them all in one order. The first juror called was Charles B. Cornell. Mr. Evarts— This is a suit for libel, Mr. Cornell ; do you know anything about the case ? A. No, sir. Q. Formed no opinion? A. No, sir; I know nothing about it, except what I saw in the newspapers. Q. Do you know either of the parties ? A. I may have seen Mr. Opdyke, but beyond that I have no acquaintance with either of them. Mr. Evarts — We have no objection to the juror. Berman CusniNG stated that he had heard of the case before ; saw something about it in the newspapers ; had formed no opinion in regard to the matter ; con- sidered himself an impartial juror, and fully competent to render a true verdict ac- cording to the evidence. (Objection to the juror withdrawn.) Thomas Warren had not formed any opinion in regard. to the case, and could give an impartial verdict. (Objection withdrawn.) Benjamin Wat knew nothing about the case, except what he saw in the news- papers, and had formed no opinion, knew neither of the parties. (Objection with- drawn.) Thomas J. Wayne, Jr. , had heard of the case politically ; had formed no more opinion on this subject than he had on any political matter. Q. What is the opinion you have formed? A. I don't know that I am called upon to state. Judge Mason — You certainly'are. JuKOR — Well, I think my mind is biased. Judge Mason — The juror can stand aside. Augustus F. Mullee, knew neither of the parti* ; had not formed or expressed any opinion in regard to the matter. (Objection withdrawn.) John T. Seaman and Hans J. Hansen knew nothing about the case and were without any opinion on the subject. (Objection in each case withdrawn.) William Holden liad read something about the case, but had not formed any opinion ; had read something in the Sun, but did not remember what it was exactly. (Objection withdrawn.) G-EOEGE E. Harrison had heard of the case before, and would rather be excused from sitting on the jury : he had read all the correspondence and considered him- self rather biased on the matter. (Excused .) Henry Harris and Bernard Kilduff were then examined, but never having expressed an opinion they were accepted as jurors. Samuel C. Dana thought he was somewhat biased on the subject, and was ex- cused by the court. John Drinker and H. K. Ball were both without prejudice, never having formed nor expressed an opinion. (Objection withdrawn in each case.) Mr. Evarts — We shall now exercise the right of peremptory challenge. Mr. Clark, will you be good enough to draw' other names instead of Messrs. Kilduff and Seaman ? Marcus Klinger was drawn in place of Mr. Kilduff, and upon being questioned proved satisfactory to both parties. Philip Van Valkenburg was then called to supply the place of Mr. Seaman . Me. Field— Do you know either of the parties in this suit ? A. I know them by sight. Q. Have you any particular bias in this case ? A . No, sir. Q. Have you had any business with either of the parties ? A. I have not. Q. Do you know Rantz Van Valkenburg ? A. I do not. Mr. EvARTS — What is your business? A. Drygoods jobber. ' Q. Are you not acquainted with Mr. Opdyke ? A. No, sir ; except by sight. Q. Do you know nothing about this suit ? A. I have heard it talked about. Q. Tbu have probably talked about it, too ? A. I have to one or two in the store. Q. Have you not formed some opinion ? A. No. Q. You were interested enough in the case to talk about it in the store ? A. Yes. Mr. Evarts — There seems to be a difference of opinion among us, your Honor, as to how many peremptory challenges we are entitled to. Judge Mason— The statute only gives you the privilege of peremptorily chal- lenging two jurors. Mr. Field— That is my view of the rule. Me. Evarts — My associate, ex-Judge Pierrepont, thiukswe are entitled to three ; but I think myself we are only entitled to two. However, we would like to have your Honor's ruling upon the point. Judge Mason — I am inclined to think that the law was changed, making it three ; but I don't mean to jeopardize the trial for a surmise. The statute before me de- clares the number to be two, and that must be the ruling of the Court. Mr. Evarts— It is agreed, then, that there are to be but two peremptory chal- lenges, and that no exception will be taken by either party to your Honor's ruling. The juror, Mr. Van Valkenburg, may stand aside, and the Clerk will be kind enough to call another juror in his place. Edward M. Seaman was then examined and accepted instead of Mr. Van Val- kenburg. Mr. Evarts— We will excuse Mr. MuUer also, 'and the Clerk will call another juror instead. Caspar J. Westervelt, proving satisfactory to both parties, was accepted as the twelfth juryman, making the number complete. 7^ The jury thus empanueled answered to their names, as follows : Charles B. Cornell, Berman Cushing, Thornas Warren, Benjamin Way ,^ Hans J. Hansen, Wil- liam Holden, Edward M. Seaman, Henry Hams, John Drinker, H. K. Ball, Marcus Klinger, Caspar J. Westervelt. A NICE QUESTION. Ex-Judge Pieerepont — If your Honor please, a question has arisen as to the right to begin, and we now move that the Court direct the defendant to commence the case. You will perceive that the complaint states that these libels were published in the Albany Evening Journal on the 18th and 24th of June, 1864. The answer ad- mits the publication, but justifies the act by stating that the publication was true. Nothing that is alleged in the complaint is denied in the answer. Consequently, imder our rules of proceeding, there is nothing for him to prove ; and it is for us, upon whom the burden of proof rests, to open the case to the Court and jury. There is no denial of a single allegation contained in the complaint. The defendant states that these allegations are true ; but he also says that he did not make them until after he had given the matter his careful consideration, and that such consideration was enough to convince any man of ordinai7 judgment that the allegations were true. Now the Code, if your Honor pleases, makes provision for a case of this kind, and I refer j'outo page 165 to strengthen my position. The defendant having admitted everything that is charged in the complaint, there is nothing for the plaintiff now to prove, and the burden of the case falls upon us. We are here ready to meet the burden by way of jusfification, and it is for us, therefore, to be- gin the 'case.. If we don't satisfactorily prove the truth of these allegations we are liable. No special malice is claimed nor specific damages called for in the pleadings, and we ask your Honor to direct that the party having the affirmative shall prove the case. The question has repeatedly come up in England in libel suits, and this has been the practice. If there is anything to be proved by the plaintiff before the case goes to the jury, of course he has the privilege of introducing testimony ; but I hold that in the present condition of the pleadings, the burden of the proof is upon us, and we are entitled to open the case. Ex-Judge Emott — Does the gentleman on the other side mean to say that if this case was given to the jury without any evidence, merely upon the pleadings, they would be bound to give a verdict for the plaintiff for any amount of damages he might claim ? Does he mean to say that we are not at liberty to prove malice ? We have a right to show express aild positive malice on the part of the defendant. In regard to the amount of damages, is it not important for us to prove the extent of the circulation of the Evening Journal ? How else are the damages to be en- hanced or lessened except bj' showing the circulation of this newspaper ? As we have to go to the jury on, the question of damages, it is important for us to show how extensively these libels were promulgated. I am surprised that the point was raised by the gentleman, because the practice is well settled, both here and in Eng- land. Lord Denmai>, sitting with Lord Lyndhurst and Baron Bailey, decided in a case exactly similar to this that the plaintiff was entitled to begin the case, and overruled kho decision in the case of Cooper vs. Whitelj^ where the Judge was of an opposite opinion. In the case of Huntington vs. Conkey, reported in Barbour, there was a similar decision, which was affirmed by the Monroe general term. But the most important case of all was that of Fry vs. Bennett, where this point arose and was dis- posed of after the English fashion. The case came up before Judge Oakley, who ruled that the right to begin was with the plaintiff, and Chief-Justice Bosworth affirmed the judgment. The question then came up before the Court of Appeals at Albany, where it was fully argued, and the result was that the Court affirmed the ruling of the lower Court. In the case of Littlejohn vs. Greeley there was a similar decision ; so that it may fairly be considered the practice in all our courts. JundE Mason — I am very much inclined to think the rule is as is stated by the counsel for the plaintiff. In cases of this description especially the plainti^ should have the right of introducing testimony as to the question of damages. In no other way can the damages be enhanced or mitigated except by proof. Mr. Evarts — Your Honor does not wish to deprive us of the right to offer autho- rities. I think I shall be able to satisfy this Court that the cases of Fry vs. Ben- nett, and ilittlejohn i)s. Greeley, are wholly distinguishable from this case. Now, the circulation of a newspaper, however great or small, does not affect the question of malice one iota, and it would be a matter of error for the plaintiff to be permitted to prove anything not set forth in the proceedings. Baron Alderson lays down the rule in this way : ' ' What would be the consequence if no evidence was to be given at all ? He who would not wish the result to be against him, must begin." Judge Darling Sufith, of this State, decided similarly The plaintiff in this case claims damages generally, and I submit to your Honor that it would be unfair for him to come in here and produce testimony as to any specific damages when hfe does not malie the averment in his complaint. Judge Mason — I am strongly of the opinion that the plaintiff has the right to be- gin this case. It is true he has not stated the extent of the damages in the plead- ings, but that dees not prevent him from putting in evidence the circulation of the Evening Journal, with the view of getting at the question of damages. I am also inclined to think, in reference to the question of malice, that it is not necessary to make a special averment in the pleadings. There may be some doubt about the rule ; but I so hold, and I think the law is to that effect. THE CASE FOR THE PLAINTIFF. Ex-Judge Emott opened the case for the plaintiff and spoke substantially as fol- lows : If the Court please, and gentlemen of the jury, the appearance of this court room testifies that there is something of great public interest in this case. The jury, however, has been selected with great care on both sides, and are supposed to be unbiased. It is not to be supposed that these parties are unknown to you, nor that any of you enjoy their acquaintance, but they are men of such repute that you cannot fail to know something about them. Now I wish to remove any impression that you may derive from any source whatever that this is a politi- cal libel suit. It is true that you have before you two men who occupy a pro- minent position in the same political party ; but gentlemen, this is not a suit with reference to political questions. Nor is any action brought here which can affect the political proceedings of either of the parties. It is a case where the defendant has ventured to promulgate in the most deliberate manner charges which affect the personal character and integrity of the plaintiff in this suit. It is no political strife between the two parties, but a question affecting the private character of the plaintiff. George Opdyke must be known by reputation at least to every one of you. Once the chief magistrate of the greatest city on this continent, and long before that associated with the leading merchants of New York, who would spurn his acquaintance if there was anything affecting his character for honesty or mo- rality. If I was addressing you, two years ago, upon the question of his charac- ter. I would have nothing more to say. He is now before you — a man charged with swindling^with being a speculator upon his country in the hour of its great- est peril — as a man who was ready to sell his soul for gain — as a man accused of perjury in the public prints of this city, as he walks before his fellow-citizens. The whole of this is the work of the defendant, and his counsel stands here to-day to justify it. They have invited the justification, and we are prepared to meet it. Thurlow Weed must be known to you as well as George Opdyke. He is a mem- ber of the same political party as the plaintiff, and was formerly publisher of the Evening Journal. He is an able writer, and charges of this description come with double from his pen. His ability as a journahst is unquestioned. He has done as much, if not more, than any man to build up a party which now rules the destiny of the coimtry, and whose influence will be felt all over the known world. He has been for years the political leader and guide in this State, with an influence spread- ing all over the Union. He is allowed to control the columns of a newspaper even after he has severed his connection with it, to attack the character of the plaintiff. But the case does not stop here. Standing where he did, he affixed his initials to the libelous articles, and sent them broadcast to the world, not as the missives of soiue unknown and obscure editor, but as the productions of his individual pen. It is no obscure libeler that we have to deal with. And now for these charges which are made against my client. If you are unfamiliar with the publications which have brought us here to-day, you will be astonished with the magni- tude of the crime, and be at a loss to impute a motive for such gross and reckless conduct. I have collected from the files of the journal the gist of these charges, and without reading the whole of the articles I will briefly state what they contain. I will begin with this sentence : ' ' George Opdyke has made more money upon army contracts than any fifty Jew sharpers in New York." The next charge is more specific as regards malice ; but it is necessary for me to explain matters a little. Previous to the July riots, Mr. Opdyke was interested in th'e manufactory of guns and carbines for the government . The mob made this factory the object of their special vengeance, and utterly destroyed it, together with all its contents. Not even the books and papers were saved, so quick and complete was the work of destruction. A claim was made upon the county for the loss of this property, and the Board of Supervisors allowed it. The claim was made by Mr. Farley, who was the manager and part owner of the factory . Mr . Opdyke made no concealment of his interest in the establishment, • but, like any man of business, thought it would be better for the manager of the con- cern to make the claim, which was fairly stated, and allowed by the Board of Super- visors. The libelous article, in referring to this claim, says that George Opdyke concealed his interest from the Board of Supervisors in order that he might, as Mayor of the city and ez ojjicio member of the Board, have the privilege of sitting in judgment upon his own claim. It was also stated that a portion of these guns which had been delivered to the government, and for which he received $25,000, were charged ia the bill against the city, before the Board of Supervisors, and that in this way the plaintiff received double pay for his guns. The next allegation is that at the time John C. Fremont was a candidate for the Presidency, his financial position was such that he had to dispose of a portion of his Mariposa estate to raise some money, and that on that occasion two million five hundred thousand dollars of the stock was wrung from him by the plaintiff, who took-advantage of the candidate's necessities. The next charge is that the plaintiff was engaged in selling shoddy clothing and blankets to the government. That these shoddy ar- ticles were rejected by the government agents in this city, but " were worked in in Philadelphia." I suppose thei-e can be no doubt about the meaning of the words "worked in." They certainly mean something disgraceful. But the most mali- cious charge of all was the allegation that George Opdyke sold the ofiice of Surveyor of the port of New York for the sum of $10,000. We have claimed, for this false and malicious attack, the sum of $50,000. They will not say that this sum is beyond the ability of the defendant to pay. I tliink they will hardly say that this is more than we have a right to demand, especially as these charges have been directly re- newed, and are even now on record in the courts of justice . I say that, if they fail to prove these charges, the sum of $50,000 will not be near enough to cover the re- sults of the injury inflicted. It is not money for which this cause is brought ; but we demand your verdict— the largest and most decisive, as well as the expression of yoiir opinion — the opinion of a jury drawn from among the intelligent men of this county. It is to know the outrageous character of the libel, and the unfounded charges on which it is based ; and to give you an opportunity so that you may show that sense of its untruth when that shall have been proved ; your sense of its character, as it stands in the columns of the paper where it was first published. A good deal has been said about motives in the case. It is hard to say what may have been the motives for this publication. It may have resulted from disappointed schemes of ambition. It may have been the result of envy or of wounded vanity. In any way, the motive was malicious. And if these things be so, if we do not receive at your hands a verdict that shall ring through the land as loud and as wide as these charges have gone, justice will not be done. No trifling amount can mark your reprobation of such a libel, nor of your sense of justice in this case. There is no mistake in this issue.- Either George Opdyke is a heartless, brutal, corrupt and per- jured scoundrel, or else the author of this publication is a libeler, attacking a man's dearest opinions in language the most inflammatory that can be invented. If this be 60, there can be no verdict given by you too large to punish him. What is more 8 important to the community, to you, and to Mr. Opdyke, is that you should consider this question in regard to its results. You must show that the influence in the hands of the publishers of newspapers is not altogether unlimited. But I must say that there is no power in this country equal to that of the proprietors and conductors of the pub- lic press. They have the means of doing wrong, and inflicting evil greater than that allotted to any other power in the world. Frequently we hear that counsel in a public court does this and does that. But the voice of counsel dies within the room where his words are heard. The conductor of a public newspaper puts his ideas in- to print, and sends them broadcast throughout the country. When these words come mto general circulation, there are no means by which their influence can be stopped. The only control that can be exercised over them, is to be found in the wise and proper principle in which public justice is administered through the law. The learned counsel then proceeded to read the words charged as libels from t;-\e Evening Journal of the 18th of June, conveying direct reflections on Mr. Opdyke, late Mayor of the city of New York. " This man has made mora money by secret partnerships in army cloth, blankets, clothing, and gun contracts, than any fifty sharpers, Jew or Gentile, in the city of New York. * * * "G. W. Farlee, Opdyke's son-in-law, made a claim upon the Supervisors for damages sustained by the destruction of guns in the process of manufacture under a contract with the Government. Mayor Opdyke was, by virtue of his ofaco, a member of the committee before which this claim was allowed. Opdyke disclaimed any personal interest in the gan claim. Farley denied in the journals that Opdyke was interested, and made an affidavit, which was submitted to the committee, swearing that he. was the sole owner of the gun contract. Opdyke, therefore, sat in the committee, investigat- ing the claim of his son-in-law, and at an early day received a check for §190,000. It is alleged that $25,000, received from the government on the contract, wa.s forgotten in making up the claim against the city. But though the city paid handsomely and promptly, 'Oily Gammon ' soon came ' to grief.' He refused to divide profits fairly, and Mr. MclVcII, member of the present legislature, commenced a suit against George Opdyke for a sixth part of the $190,000. In presenting this claim to the Supervi- sors, Opdyke declared, and his son-in-law, Farlee, made oath that the former had no pecuniary inter- est in it. In answering Mr. McN'eil's complaint, Opdyke denies that McNeil is thus interested, and avows himself as the owner of the share claimed by the plaintiff! And this answer to McNeil's com- plaint is sworn to by Opdyke ! This, therefore, is Mayor Opdyke's position. To qualify himself to ,act impartially and honestly for the tax-payers of New York, on a committee he disclaims being inter- ested in the gun claim, and to that disclaimer his son-in-law adds an affidavit. The claim is allowed and paid. A partner, after calling the ex-Mayor a swindler, prosecutes for a share of profits ; and in his defense, Oydyke made oath that he owns the largest share of the contract, which, before the claim was paid, he had repudiated. . "* * * * More than a year ago, Mayor'Opdykc and others reminded General Fremont that, when he was a candidate for President in 1856, he was weakened by pecuniary embarrass- ments ; and that as his friends intended to run him again, it would be wise to put his . affairs into a better shape. The General assented, giving to Messrs. Opdyke, Morris Ketchum, and D. D. Field a schedule of his debts. These//-ierec?s formed themselves into a Mariposa Mining Company, mortgag- ing the mines for 11,500,000, with the proceeds from which all the General's debts were to be paid. But difficulties arose, which, however, were' adjusted by the payment, by General Fremont, of $2,400,000 in Mariposa stock, to Messrs. Opdyke, Ketchum, and Hoey, and a c unsel fee of §200,000 to David Dudley Field, Esq. And said the confidential and real friend of General Fremont, who gave me this information, ' there were other exactions and extortions during the negotiations, that would make Jews blush. ' " Counsel also put in the following from the article published in The Albany Even- ing Journal of June 25th, 1864. " Mr. Gibbs, the carbine patentee, says, that in the 'claim' submitted to the Supervisors, on which $190,000 was paid, there is a large swindle. * * * Opdyke can, if he pleases, enlarge the field of inquiry so as to embrace the alleged sale of the office of Surveyor of the port of New York for the moderate sum of §10,000 ; the copartnership with ' Nothing to Wear ' Butler in the Custom- House ' labor contract ' ; and the 'shoddy' blankets that were rejected in New York and subse- quently worked in at Philadelphia." TESTIMONY OF PHILIP TEN EYCK. Philip Ten Etck sworn ; examined by counsel for plaintiff : I was one of the publishers of the Albany Evening Journal in June, 1864 ; the defendant, Weed, was not then in any way connected with the paper ; he had no interest in it, whatever ; we printed the Daily, Weekly, and Semi-weekly Albany Evening Journal ; they all contained pretty much the same reading matter. Q. What was the extent of their circulation — the paper containing this libel ? (Objected to ; objection over-ruled ; exception taken.) A. The aggregate circula- tion of the three editions was from 23,000 to 25,000, mainly in the State of New 9 York, west of the City of New York ; it had a limited circulation in this City ; it exchanged with pretty much all the prominent newspapers in the State, and to some extent outside of the State ; the Weekly edition was about 17,000 ; the Semi- weekly not more than 2,500 ; it was sent to the Governor and some of the officers in the State House. Cross-examined — ^The paper was not circulated by public authority among public officers ; it was sent as a matter of favor to them, and also to the crier of the Circuit Court. Re-dired — It was sent to subscribers in the State Legislature ; there was a dispute about its being a State paper ; Judge Hogeboom gave it as his opinion, prior to June last, that it was not. TESTIMONY OF ALEXANDER WILDER. Alexander Wilder sworn ; examined by counsel for plaintiff ; I live in New York city ; I belong to the staff of The Evening Post ; my duties lead me to Albany every winter ; lamar-quainted with The Albany Evening Journal ;\icircu\.ivtes in places where I have seen it— -generally among members of the Whig party and Republican party ; occasionally among leading members of the Democratic party ; I have known the paper ever since .1 was a boy. Q. What has been its character and position ? (Objected to.) A. It was a po- litical paper, first anti-Mason, then Whig, then Republican ; as such, it was taken by persons having sympathies with it ; it having been once or twice the State paper, it got a circulation in different counties of the State on that account, it stood among the first-class papers in the State ; I knew nothing of its circulation out of the State ; never saw it except in some Jiterary associations ; I have found it taken in most of the departments at the State Hall, and taken, I should judge, by the average of our comity officers ; wherever I have been I have found it. Oross-examined—^lt is difficult to say exactly what I mean by being on the staff of The Evening Post ; I am correspondent generally at Albany during the sitting of the Legislature ; I have been one of its reporters here — police, and about the city ; 1 do not now hold that capacity ; I now assist in the office. Q. Have you any knowledge of it, except as seeing it in The Evening Post? A. If I understand your question, I should say I have not. Q . Do you hold the office of Health Warden ? A. I do not ; I was Assistant Health Warden last year ; I think the nomination came from the City Inspector, with the approbation of the Mayor, confirmed by the Board of Aldermen, also by the Mayor, I suppose ; while I held the office I was on T/te Evenmg Post. Se-direct^Q. Have you any particular knowledge by what Mayor you were con- firmed ? A. I have not. TESTIMONY OF MANTON MARBLE. Manton Marble sworn ; examined by counsel for plaintiff; I am editor of The World, and was such in June, 1864, a daily paper in this city. Q. Have you taken notice of the articles, portions of which have been read this morning? (Objected to.) Counsel for plaintiff proposed to show that these articles were republished in The World at the request of the defendant, with a view of showing malice. The Court. — ^You did not allege in your complaint that it was published in any other journal. Counsel for plaintiff claimed that a reiteration of the same slander or libel was admissible; The Court excluded the testimony, to which ruling Counsel for plaintiff ex- cepted, and then rested the case, whereupon the Court adjourned till to-morrow at 10 o'clock. 10 SECOND DAY. WEDNESDAY, DECEMBER 14TH, IS64. The Court-room was again crowded to overflowing, a large portion of the spec- tators being lawyers and politicians. EDWAEDS PIERREPONT OPENED THE CASE ON BEHALF OF THE DEFENDANT. May it please the Court, -gentlemen of the Jury, I begin to feel like Hamlet, that there is a special Providence in the fall of a sparrow, and that we are each but little atoms floating down the great river of time, borne by the resistless current without the' slightest choice on our part as to the isle or the bank upon which we may be thrown ; that " there is a destiny that shall shape our ends, rough hew them as we wiil." I have never struggled to avoid the trial of a cause. I have, striven with all the powers of skill with which I am possessed to avoid this trial ; I had hoped it never would be brought on ; I had sought through the friends of the opposing counsel, or the opposmg party rather, aided by my associate (Mr. Evarts), to avoid the public scandal, the disgraceful exhibition of public men which this trial must needs present before this community. Our client, Mr. Weed, said it was a public duty ; he did not shrink from it ; we did ; until I began to feel that I was a coward in my own esteem, from my reluctance to come here before you and this commu- nity, and to do my part toward exhibiting the most stupendous frauds and the most outrageous corruptions that have ever been exhibited before any civilized com- munity. In the progress of every nation, the time always comes when the corrup- tions among men in high places becomes so glaring and so outrageous that they cannot escape exposure. Such was the history of England after the great South Sea Bubble exploded. And I undertake to say to you here, to-day, that never did Lord Mansfield sit upon a trial in which were involved such great and high conset quences as are to follow the trial of this cause. From this time, it will receive a public notoriety and importance which has never been equaled in the history of this nation. The counsel who opened this case did not overstate its importance, nor can he overstate it. It was as impossible to prevent this tidal as to prevent the rebellion or the fall of Fort Sumter. We had reached a state of corruption in the public administration of affairs in this city to that degree that it could be borne no longer, and something must open the issue and exhibit it before the world. The something always does happen. It arises out of the passion, and hatreds, and selfishness of the very actors themselves, as in this case. In 1848 there was a great revolution in France. The king was driven from his throne and not one of his children ever yet returned. Just before that outbreak De Tocqueville rose in the Chamber of Deputies and gave solemn warning of the inevitable tendency of the existing corruption of public and private morals . He stated it as his conviction that it would result in a revolution in a very short time. For this he was hissed by every member present. And yet in thirty days the king was driven from his throne, and France expiated her crimes in the blood of 10,000 of her sons. We shall exhibit to you on this trial a state of corruption which, I venture to predict, will be the beginning of a revolution here. God grant that it may be bloodless ; I believe that it will be. You will see an exhibition of corruption in public morals beginning here to-day, which will end in a change — which is the beginning of an end, and which our people will say they are not willing longer to tolerate. Gen- tlemen, when the eminent counsel who opened this case was addressing you, I looked into his clear, honest, truthful countenance, and I saw the tremor of the confusion, and the struggle between his conscience and his client. He never should have been brought into this trial by this plaintiff. There was no soul in his voice ; there was no magnetism in his eye ; none of that sympathy in his face, which in a righteous cause would have won over every beating heart in that seat. But he tried to lash himself into a belief that there was some justice in his cause ; therefore he overstated and exaggerated to the extremest degree the statements which he said had been made by Mr. Weed. I took down his words. He said this libel substantially charged Mr. Opdyke 11 ■with being a perjured sprefcch who would sell his soul for gain, while others burned with a patriotism ; a heartless plunderer of his country ; a thief, a swin- dler, who had put $25,000 falsely into his account to the city ; a perjured official, a traitor to his country ; false to his friends ; a trader in public office. Those are his identical words . Now let us see if there is anything to warrant them. I will read the libels from the original paper. (Counsel here read the portions that were published in the report yesterday, with a few additional paragraphs. ) Mr. Weed in his answer sets up that he believed these things are true, and tbat he was pro- voked to make this exhibition in consequence of the attack made upon him about - the Catalinej-a slander which Mr. Opdyke made because his political enemy would not help him to a place out of which he could make money. Now if we do not convince you that these statements in the article complained of are not only sub- stantially but perfectly true, then our witnesses will fall far short of their writ- ten testimony whiclr we have taken in this cause. You recollect yesterday we moved the Court for the right to open and close, the burden being upon us ; and the other side opposed it, claiming that they had the right to show express malice, and giving the Court to understand that they intended to prove it. The Court decided that they should have the opportunity. Have they shown a particle of express malice ? You will see that this case is one of malice, and that the plaintiff is moved in this matter by two passions, viz : malice and avarice. We have learned in the progress of this trial that Mr. Opdyke persisted in bringing it on in .spite of every good friend, who told him he was an idiot in so doing. We finally got at the reason of his persistency. He thinks he can get money out of the defendant, and is willing to risk his reputation for the sake of money. So said one who was his partner, and who will be put on the stand. " You will find," said that partner, " that the passion of avarice lias so taken possession of him that he has even let his own house in the Fifth avenue, where he told me he was worth $2,000,000, and had gone to a boarding house to save money." The answer avers not only that these charges were provoked by the false accusation in regard to the Cataline, with which it was proved, over and over ag.ain, that Mr.- Weed had no connec- tion, but by other charges brought by Mr. Opdyke to the injury of the de- fendant. The acquaintance of these two men commenced in this way. Mr. Opdyke, having made a great deal of money, wanted some political honor, so he got elected to the Legislature. Mr. Opdyke arose from an humble beginning, in New Jersey. Mr. Weed also arose from an humble beginning. Both struggled up from the lower ranks of life. But there is this difference between them : Mr. Weed still retains his feelings of affection and kindness toward the class fi-om which he sprung, while Mr. Opdyke kicks away with scorn the ladder by which he ascended. At first he was a Democrat, but afterward became a Republican. He sought the ac- quaintance of Mr. Weed. He mingled his desire of money-making with what he did He sought to accumulate it by the sweat of other men's brows, and by the use of his capital, so he introduced a bill to repeal the usury law. Mr. Weed saw Mr. Op- dyke, and told him it was not right. Mr. Opdyke made a speech in favor of it, and urged it through the newspapers, arguing that it would be better for the poor peo- ple, because the result would be that the rate of interest would fall below seven per cent. "If that is so," said a shrewd silversmith up town, " then why don't it fall below seven per cent, when there is no law to prevent you taking less V ' Is there any political philosophy that can answer that ? Everybody knows that it is only the money-lender who wants the thing done, unless it be somebody who has been humbugged and deceived. Opdyke quarreled with Weed in regard to the matter. Weed came out and denounced the proposed change. Then there ap- peared a violent article in The Herald, written, as was found, by Opdyke. Weed was at the Astor House ; Opdyke came and excused himself for having published the article, and wanted their enmity to drop. They seemed to bury the difficulty. Then they talked confidentially about the management of political affairs, and how to raise money for the political canvass. Next morning that private conversation, with exaggerations and falsifications, every word of it, appeared in The Herald. Again Opdyke excused himself to Weed. But Weed said : " I have no more to do with that traitor," and he never spoke to him since. When the rebellion broke out, our Go- vernment apprehending foreign recognition of the rebels, sent Archbishop Hughes 12 and Thurlow Weed as agents to visit the crowned heads and great men in Europe, ' and set the minds of the people right concerning our affairs. The influence of those men did stop that recognition of the Gonfederacy. On his return, the Common Council voted Mr. "Weed the freedom of the city and a public dinner. Mayor Op- dyke vetoed the resolution, admitting atjthe close of his veto that there were other reasons than those he had expressed which he would not give. The indignant Common Council passed the resolution over his veto, and Weed received the free- dom of the city. Now, the opening counsel said there was no provocation for these charges. Just twenty-four hours before this came on, there appeared in all the newspapers the most violent and bitter attrck upon Weed that you ever saw, by Mr. Andrews, pretended in consequence of a grievance which happened last summer. When I. saw Opdyke, day before yesterday, • walking with Andrews, I under- stood why the letter came out at this time. In that lett(ir, he says Weed dropped some disparaging remarks about Mrs Lincoln, and he ran that very night and told her, and that, subsequently. Weed, when in Washington, got forgiven. But the tale-bearer never got forgiven, for Mrs. Lincoln saw that he was ejected forthwith from his office and he never had one since. She treated him right. Now, if Op- dyke brings this suit for the purpose of vindicating his character, and not to get money, why didn't he commence a criminal prosecution ? But tlie counsel must have $50,000 dollars to punish the defendant. Nothing but avarice moves this action. Ambition and lust grow weak with age, while avarice increases even to the moment wh^n a man droops into the grave . The charge against the plaintiff is, that he resorted to contrivances by which to put money in his pocket in a way that is not lawful, honorable and just. Under the present law of libel we are allowed to justify by proving the truth of the charges. We should do so. They dare not refuse to put the plaintiff on the stand. He will have to tell his own story to you. One charge is, that he did recover out of this city, in an illegal manner, some $60,000, while as its public guardian he held a flaming sword against any one who should attempt to rob it . Another charge is, that it was alleged that he received for the office of surveyor $10,000. We shall prove that it was alleged, and that there was ground for its allegation. Another charge is, that he got a large amount of money in an extortionate way out of Gen. Fremont in the Mariposa mining opera- tion. We shall put witnesses on the stand to prove that. Another is, that he made extortionate contracts out of the Government, connected with army clothes. We shall put witnesses on the stand to prove that. These are all the charges that are made. Now for the proof. In the libel it is said that he can enlarge the field of inquiry so as to embrace the alleged sale of the office of Surveyor of the Port of New York for $10,000. We say it is alleged; we shall prove it in this way: A man named McNeil, now a member of the Legisla- ture, who was a partner of the plaintiff, a man whom you will note and whose every word you will believe, was an active politician in' this city in 1859, when the plaintiff wanted to run lor mayor. Opdyke applied to McNeil for assistance — the same man who subsequently became his partner and also sued him to recover part of his ill-gotten gain — the same man to whom the plaintiff paid, four days ago, $11,000 to stop the suit. Opdyke, following the example of other mayors, got his picture exhibited in all the shop windows. He was beaten by Wood. Two years afterward Opdyke went -to McNeil again for help to be elected Mayor. McNeil asked him to give him a little advice. Opdyke assented. Said McNeil, " That's a good picture of yours, but somehow it don't take ; the instincts of the people are not educated up to that style of face. Now put the pictitre out of sight and use money." When Opdyke heard that word, "he was sorrowful, for he had great riches," so he thought, " How shall I get along without paying the money myself ?' ' McNeil said, ' ' If there is a right kind of Surveyor in the Custom House who will assess the clerks some $10,000, that can be handed over to you, so that the election will not cost you anything." Opdyke took. Henry B. Stanton was Opdyke' s candidate. Says McNeil, "Suppose Andrews is put on the track as a third man." That is the thing," says Opdyke. So McNeil and A. J. Williamson went to see Andrews. They met him at an oyster house and had a drink. Andrews asked McNeil to get Opdyke's influence at Washington. " What will you give ?" says McNeil. " I have got nothing," says Andrews, " but I will assess the clerks 13 for $10,000 for Opdyke' s election. ' ' McNeil went back to Opdyke and said, ' 'Andrews says if you will withdraw your influence for Stanton and let him have that office, he will give you the money for the election." That relieved Opdyke. "But won't he cheat you ?" said Opdyke. " No," says McNeil, "he looks like a man that won't cheat." "Then, go," says Opdyke, " and take Williamson with you, and get the promise to you two together and I will agree to it. So they went and made the bargain at the same oyster house the next jiight. Opdyke did not press Stanton, so that Andrews slipped in, and Stanton did not know that Opdyke was playing traitor to him. Opdyke was elected mayor, and the poor clerks paid in different assessments^ some $9,000 and odd. Now came in Barney as collector, who said that money ought to go to the Committee instead of to Opdyke. Some friend said, "Are you afraid to trust Opdyke with it?" Stroking his face, Barney said, " The proper way is to let the Committee take the money ;" so the money went to the Committees, headed by Churchill and Keyser ; but, after all, a part of the money did get into Opdyke' s hands, on the ground that he had advanced his own money for his own election ; Andrews had promised McNeil tliree or four places for his friends in the Custom-house ; McNeil asked for the places after Andrews' appoint- ment, but never got them ; he grew suspicious; and finally asked Oixlyke, "Has Andrews ever paid you that $10,000?" "No," says Opdyke, "I have only got $7,000 of it ;" a few days after that, Opdyke, McNeil, and Andrews met at Wil- lard's Hotel, in Washington; McNeil, indignant at the way he and Opdyke had been treated, went up to Andrews and said, "You are a cheat ; there is no honor or truth in you ; you promised me three or four places, and you have cheated me and Opdyke also ;" Andrews said, " I did pay Opdyke the S10,000 ;" just then Opdyke said, " Charley, be still ; come with me and let's take dinner ;" McNeil threw him off; "I was taoarding thei-e myself," said he, "and I knew that he would not give me a drop of winej and I would not go;" still McNeil remained Opdyke's friend ; Opdyke said, " You and 1 can make some money. There is a Government contract for making ten thousand carbines by Brooks, and we can go into it ;" so they made an agreement with one Marston, who had an establishment, corner of Second avenue and Twenty-first street, to make the guns. The order from the Department was in 1861, and it was assigned to Opdyke and McNeil in 1862. They hired Marston, who, not having any money, it became necessary for Opdyke to advance a large amount. It ran on until he had advanced $65,000, for which they took a chattel mortgage on the machinery. Loren Jones, the superintendent, again looking over the accounts in December, 1862, found that Opdyke had lost some $30,000. Opdyke became exceedingly, blue, and said he would sell out at a loss of $25,000, but nobody bought him out ; so he thought lie would buy Marston out, and they had the goods appraised and transferred to Opdyke's son-in-law, Farley. McNeil had advanced several thousand dollars, and Jones was likewise in- terested in it. Then they kept close watch of the accounts. Tliey got a foreman in who cheated them out of a large sum. Just one week before the fire occurred they looked and found that Opdyke could not get off well without a loss of S25,000. On the morning of the 13th of July, Jones had thirty-four policemen come to that armory, who were prepared with loaded arms and ammunition to keep away a regiment of men. A rioter during the mornmg dashed in the panel of the door with a sledge-hammer. The poupemen fired, killed the head man, and wounded another; the rest ran away . Not a soul of them dared to return, Later in the day came an order to withdraw the policemen . Jones was appalled. He hastened to the Mayor's office. The Mayor was not there. He was at the St. Nicholas with Governor Seymour and General Wool . Jones saw Farlee, stated the case, and asked what it meant. Farley smiled, and said "I don't know." Jones went to the St. Nicholas, saw Opdyke, and asked him " what does this mean? The pro- perty will be destroyed." OpcJyke says, " Well I don't know ; I guess I'll go and take dinner." Jones went back to the factory. By-and-by women and children came about it, then men, and set it on fire. One day before the fire, in looking over the accounts, they had found that they had paid out $183,000, and there w^s yet due workmen $2,000. Jones was not a lawyer ; Farlee was. McNeil went to Opdyke ; Opdyke said " you keep still, keep out of the way, don't boftier about 14 this thing, Jones and I will make this matter up, and this city will have to pay for it." There was to be an auction of the refuse after the fire. McNeil wanted to at- tend it. Opdyke says, " don't go. near it ; it will be all right." McNeil, who had an interest in it, went to Farley, who said the same — " it is going on right ; you shall have your $2 on each carbine, the same as though the contract had been fulfilled. " "Well, they undertook to make up the account of the loss to the city. Jones went and saw Opdyke about making up the account. Says Opdyke : " If I get back my money that I have put in, won't that be a pi-oper way ?' ' "Did the Mayor look at you ?" I inquired of Jones. " No," said he, "he was looking down on the paper." " What did you say ?" said I. "I said, ' you know you got $27,000 out of the Government for some that were delivered, and there was a loss of $25,000 or $30,000 besides ; if you get all your money back what are you going to do with us ? Leave us out in the cold ?' ' ' Opdyke hesitated, looked down again and said : " How ought this to be made out?" Jones said : "You are Mayor, you are watch- ing these things ; one of the objects of putting you there was on account of ypur wealth. Rich men never commit frauds. You know that for the guns when finished we get $24.70 ; well, they are in various stages of progress ; save nothing but the lock, worth S3. Now, suppose we deduct what it would cost to make the lock and then we save a profit to ourselves of $10 each gun. Won't that be a goo(3 way of making up the account ? Deduct the price of manufacture, $14, and it will leave $10.70." Opdyke said : "Have you shown this to Farley?" "No." " Go and see him." All this time th 3 Mayor kept looking on the paper. Jones pre- sented it to Farley ; it took a long while to make him understand it. He said it was exactly the thing. So they made up the account. They had sold 1,050 car- bines for $27,847. The mistake Weed made was that it was $25,000. It was pre- sented to the Board of Supervisors. They did not sei^arate the guns in the account. They put in $97,000, the price paid for the machinery, and made out a total of $208,000, deducting therefrom $2,000, leaving the nmount of the claim $206,279. The account was confused ; I do not suppose a single Supervisor understood that they were taking wrongfully from the tax-payers $65,000. It was adopted October 20 and approved October 23, being sworn to by Farley, the son-in law of the Mayor, as being the sole owner. The Mayor gave a check to the order of Farley, who put it into his own bank and paid it back a few days after to Opdyke. Now the actual loss on the first thoiisand guns was $3.17 each. Each one is charged at; $13.17. On the next thousand $4.54, which was the value of the material destroyed — charged to the city, $15.24. Onthenext, $6.61— charged $17.81. Next, $8-charged $19. Thus, $13,870 were charged to the city, where they should have paid $3,000 ; $15,240 where they should have paid $4,000 ; $17,315 where they should have paid $6,600 ; and $19,125 where they should have paid $8,420; and so on, by which artful contrivance, from this city, was taken upwai'ds of $65,000 ; no Wall street financier ever surpassed that ; McNeil having kept away from the auction, comes to Opdyke and wants his share ; Opdyke can't attend to it just now ; he had not looked to see how McNeil's account was ; he would attend to it some other time ; that time came, and McNeil went to Opdyke's house with Williamson; Opdyke said "there are some difficulties about this thing, and I don't see how I can pay you what you claim ;" " What do you mean," said McNeil; " Didn't you tell me to keep off, and the thing would be all right ; and didn't Farley tell me if I kept away, I should have two dollars on each carbine?" said Opdyke, " I have reprimanded Farley most severely ; he had no right to tell you that ; but I will give you $1,000, and we will settle it ;" "A thousand dollars! it is $17,000, and you know it," said McNeil ; "Well, I can't give you that," said Opdyke ;" McNeil, putting his finger to his nose, told him he was a cheating, lying scoundrel in his own house, and left ; Opdyke sent William- son to try to stop him ; McNeil commenced an action to recover the money ; not. long after, McNeil met Opdyke in Congress Hall before breakfast, and there pub- licly called him a swindler, and told him he had dwindled him in this gun con- tract. Opdyke sat opposite him at breakfast, and the food dropped from his knife and fork when he undertook to eat. McNeil followed him iato the hall, and told him again what he was. And this defendant is sued because he said McNeil did say so. Now, we shall show that instead of its being notorious that Opdyke had an interest in this factory, as the counsel alleges, he wrote, and had it printed in the sjtate a list of articles furnished by him, and the prices.] . Q. At the time you sold these articles to Mr. Marston, at the prices named, was from October, 1861 to March, 1S62. If tliis machinery continued in use down to the 13th of July, 1863, when the fire occurred, what would you say as to its being wo^rth more or less than what you sold it for ? A. Why, less, certainly. ^ Q. How much less than when you sold it? A. You could not sell it for more than two-thirds; that is the general rule for machinery that has been used, two-thirds to three-fourths. Q. Did you ever hear the theory that machinery is more valuable when used a shorfe time? A. I never heard that; I would not buy it back /or more than two-thirds of what was paid for it. Q. To what does this rule of diminution in value apply? A. It applies for all in this inventory, lor it was all used, I believe. Q. Tell us the truth about machinery having risen in value np to the time of the fire? A. I made no difference in price ; I sold the same articles at the same price ; I never charged more than $275 for milling machines, and I think mine were the best in the fac- tory; on 13th July, 1863, we had not raised our prices; we kept from 500 to 700 mem employed ; our tool establishment is at Worcester, Mass.; our heavy machine work is done at foot of Twenty third street— the Stover Machine Co. Q. You have looked through the bill of items to examine the prices ; tell the Jury what you find to be the truth about the prices charged in this inventory, compared witb what was the true price at the time ? A. I think I will compare them with oar catalogue of prices; I find three four-spindled drill presses charged at $225, worth $150; one three- spindled drill press charged at $155, worth $130 ; one one-spindled drill press chargecl at $175, worth $150; one engine lathe charged $325, worth $216 ; potting up and adjust- ing counter sliafting for sixty-five machines, charged at $1,495 ; $8 a piece would be a large price, more than it ever o.ost me to put them up ; $4 50 would be enough ; wrought anvils at 13c. per lb., 1,263 lbs., worth 10c. per lb. ; 484 lbs. cast anvils at 10c. per lb-, worth 7c. per lb. ; one milling machine, charged at $345, worth $275 ; two milling ma- chines, each $315, worth $275 ; one small milling machine, charged $175, worth $150. Q. Twenty-nine tool hands, from December, 1862, to July 13. 1363 -average pay $19 25 per week, or $558 25 for thirty- two weeks— $17,864 ; what do you say as to that charge? A. Onem nis enough to make tools for 300 men after the shop is running. ; thai would be two men for 600, instead of 29 ; and two men for thirty-two weeks would be $1,052, instead of $17,864. i.Q. Had you been through this manufactory ? A- 1 have some dozen or fifteen times ; Haines Brothers had the place and Marston succeeded tnem, and while the maici shafting was being put up I was therfe almost every morning ; I went frequently to collect money, and Marston good naturedly would take me through ; that would draw my attention from the account I wanted to collect ; the last time was about May, 186S; 1 bad a general idea of what was in the building ; I bought a similar concern in Worcester for $33,000, with more machinery in it and all the stock on hand in 1861. Q. What is your estimate of the value of this machinery, tools, fixtures, &C;, at th& time of the fire — everything except the guns? A. I should not have wanted to pay $33,000 myself, for it ; that would be the full v^lue I should think ; it would be neces- sary to make as miich outlay to build 1,000 as 100,000— that is the different kinds ol machinery, not the number ; on a contract of 6,000 or 10,000 guns there would be a very great loss ; hardly a man would want a contract short of 25,000 to 40,000 to start with ; it would cost probably as much for the first 1,000 as for the next 3,000 or4,000, and after 10,000 or 20,000 it would not cost but very little more; the expense isia starting with the tools and mnchiaery. Cross-examiiied — I live in West Twenty-second street ; I manufacture and deal in all kinds of machinery and metals, and railroad supplies I never made small guns, only 6 and 9-inch cannon for the Navy-yard ; I made musket stocks for several con«?ernsin th& outset of the war, and patterns' to forge by, also machinery for making stocks and dif- ferent parts of the gun ; I never spoke to the defendant till three or four days ago ; h© never did anything for me.. Q. Were you. in considerable trouble aome time ago ? A. That is my baainess. Yf 53 Q. Were you not sent to Fort Lafayette ? A. Yes, sir. Q On a charge of mixing lead With tin ? A. No sir. I was sent there on suspicion last February ; I remained till the 4th of July ; I was charged by a Clerk in the Boston Navy-yard with attempting to bribe him ; I was arrested in Washington ; I had a trial in Philadelphia by court-martial ; the clerk was the only witness against me, and I was acquitted ; it was nothing about mixing up lead with tin — you have got another man mixed up with me ; I do not know who ; the clerk was p^id $500 for making the charge, as has since been proved ; since I have been out I have been at my store in Liberty street, a machinery depot ; I do not know how T came to be a witness ; I am frequently in the room of S. S. Roland, a lawyer, and he was telling me about this case ; I would like to tell what he said ; I was subpoenaed regularly. Q. Are all milling machines of the same size ? A. They are generally two sizes, they might vary a half an inch ; all do not ask the same price ; the highest 1 ever asked was $275 ; I do not remember the highest I ever heard ; others generally charged less than I ; I do not know whether any charged much higher ; I do not pretend to tell what the cost of their machinery was ; I could not tell whether the machines charged $598 or $550 were furnished by me ; I sold ten at $275 each ; I supposed I furnished all the main shafting, for $646— charged $1,680— all there was in the building was not worth $646 in my judgment ; I say only two tool hands would be required for that number of work- men whatever material is required; tools are the same in a gun factory or a machine shop, and require no more labor and attention. Q. Was there not a general increase in value from December 1861 to July 1863 ? A. there was some slight increase of stock , there is a very large increase since commen- cing about July ; the slight rise before did not affect shops that had a year's stock on hand ; everybody stopped buying for about a year ; I mean to say that this machinery which was charged $97,000 was not worth more than $33,000 for any purpose ; I thought some of the carbines were very poor ; I don't think a man would dare to shoot them ; Iwould not give ^two cents for some ofthem'that were burned, from what I have heard ; the machinery was worth more for making carbines, butuot worth more than $33,900 for that ; one company sold out all their tools for $450 ; they could be worked over in- to other tools; they are not much account when you sell out; I had a contract to furnish the machinery for making the stock of the Norwich Arms Company for $7,000 which I partly completed ; I made two sets for myself, and they cost inside of $7,000. JiJedireci— What I said about the guns being good for nothing, was from hearsay ; I un- derstood the barrels were very imperfect ; the first lot of experimental guns were com- paratively worthless ; to those my remarks applied more especially, and not to all that were unfinished ; the first person who called upon me to testify in reference to this suit, was Smith, from Marshal Murray's offtce ; he suspended me ; I have conversed since the trial came on with the counsel only and my chief clerk ; I have furnished the Govern- ment with a large amount of machinery and continue to do so. Q. Now tell all about the Fort Lafayette matter. Witness here narrated a long story commencing with jealousy on the part of Smith Brothers, of Boston, in the matter of furnishing materials to the navy-yard there ; hearing of their threats to run the witness off, he suspected one Jacobs, a clerk in the Navy-yard, was in complicity with them ; Jacobs suggested to the witness in furnishing materials to give it under weight, and upon being questioned stated that Smith Brotuers had done the same ; so witness ap- parently acquiesced, at the same time informing the ofiicers of the fact ; accordingly the first 40,000 pounds f copper were delivered by Jacobs at 40,390 pounds, but Jacobs euspeeting the trap was not caught with the second delivery; then Smith Brothers, as witness learned from good authority, paid Jacobs $500 to swear that witness had at^ tempted to bribe him ; upon this the witness was arrested and sent to Fort Lafayettei, where he had a good time— never hid better in his life; there were foreign ministers, Major-Generals, many notorious characters, and a good many lawyers there [laughter]; but when the Government began to investigate the affairs of Smith Brothers and others, witness thought they found that he (witness) was about the only honest contractor in this country ; and when he left Washington, Secretary Welles said : I am very hap^y to shake you by the hand again ; you must not think 1 had any personal feeling againstyou, bjit ^e had to commence with some one, and it might as well,be you as anybody ; I_ am ve*y happy to say to yon now that I believe there was no foundation for the proceedings taken against you ; in fact, the Judge-Advocate has written to me to that effect ; Smith Brothers, the witness further testified, had been convicted, and if they got less than ten years lie would be disappointed. TESTIMONY OF LUCIUS H. GIBBS. Lucius H. Gibbs, sworn. Examined by counsel for Defendant. I reside in Brooklyn; 1 am the inventor of the Gibbs's patent carbine; I was engaged in the armory in question to see that the gun was properly got up ; I saw the factory burning; I have tinkered LofC. ^ 54 with pistols and gans over 20 years, not all the time ; I was familiar with the machinery in this factory ; I w;as in only occasionally after Superintendent Keene came in ; Keene showed me the bill to the city ; I did not examine it at all ; afterward I saw the notice of the payment of it. Q. Did you say that in the claim submitted to the Supervisors, on which there was $196,000 paid, there was a large swindle? (Objected to, as no justificatien of the libel.) i'^ Mr. Pierrepont — The words of the libel are : " Gibbs, the carbine patentee, says that in the claim submitted to the Supervisors, on which $190,000 was paid, there is a large swindle. " The Court — I think they have a right to prove that he said so. It is not necessary for me to rule that it is justification now ; that is another question. I know no authority that will exclude it. It would be a very different thing if it was all fabricated from what it would taking the libel published precisely as is now with the fact proved that Gibbs never said so. Mr. Emott — Could we call Gibbs to prove he never said so? The Court — Undoubtedly. It is evidence in mitigation. I will not rule whether it shall go beyond that. I charge the Jury upon the effect of it. Counsel for plaintiffs excepted. Witness — I said so to a number of different individuals ; I told Farlee so in his ofiSce ; I did not use the same language. (Objected to and ruled out. It must be in the same language.) Q. State whether you gave any reason for the account being a swindle. (Objected to, ruled out, and withdrawn.) TESTIMONY OP HAMILTON HAEEIS. Hamilton Harris, sworn. I am a lawyer of the city of Albany ; have been practis ing since 1846 ; I am brother of Senator Harris ; (copy of The Albany Statesman shown' dated October 12, 1863, containing a letter from Opdyke to Ira Harris, dated September 25, 1863) I saw the original letter here published ; I believe it was in the handwriting of the plaintiff; it was sent to my brother with a request that it should be inserted in The Evening Journal, which had contained some letters of the defendant, and if they refused to publish it, then it should be taken to The Statesman ; I did the errand for Opdyke in the place of my brother; I took the letter to the The Journal; Mr. Dawson not wishing" to publish it, I took it to the The Standard and Statesman. Q. Have you the letter requesting its publication ? A. It is marked private, and was not written to me, therefore 1 do not know that I have any authority to produce it ; (the letter was, howevar, produced and identified,) I have looked for the original published letter, but have not been able to find it ; I presume it is not in existence, being left with the publisher. Cross-examined. Q. Were the two letters now shown you written by your brother, (one dated Sept. 17, 1863, and the other Oct. 3, 1863, addressed by Ira Harris to the plaintiff)? A. They are in his hand-writing. Mr. Evarts— You don't offer them in evidence ? Mr. Field— We shall offer them. Mr. Evarts— I now offer to read the letter published in The Statesman, the origin^ having been proved to be lost. Mr. Field — The loss is sufficiently proved. I utter no secret when I state that in the opening of the counsel for the defendant, the letter now offered was read verbatim, and that the counsel took occasion to state in emphatic terms that it began with a lie. I have now two letters from Ira Harris showing that it was true. Now, we shall not object to the introduction of the letter the counsel have offered if we are allowed to prove that every word of it is true, and that it was written in consequence of a previous attack in the public prints by the defendant. Weed. Mr. Evarts — Do you object as it is ? Mr. Pield-t-I do not say. Mr. Evarts — I wait to understand whether the learned counsel objects. Mr. Emott — The Court understands us. ' , . Mr. Field— rWe object, but we will waive our objection if they consenj that we rtfij prove the letter to be true. Mr. Emott then proceeded to argue against the admissibility of the lettex from Op- dyke to Harris. He said it could be important only in connection with the strange charge in the counsel's opening that it was a trick — that its publication was procured for the purpose of making a malicious attack on the defendant, and that its statement concerning a previous -letter from Senator Harris was false. Mb. Eva.rtS — It is offered as a letter of Mr. Opdyke's. Mr. Emott — It has nothing to do with the case unless it tjears upon the issue, and it is only on the ground of provocation to the libel that it is relevant. Counsel then cited authorities against its admissibility, and among others the case of Gould agst. Thurlow /r^O 55 Weed, 12 Wendell, where it was held that the publication must be so recent that it could be supposed to be made under the impulse of passion. Mr. EvABTS urged the admission of the letter, as the letter of Mr. Opdyke, distinct from the part of its publication. The letter was dated, Sept. 25, 1863, the Commissioner on Claims was appointed in August; Mr. Parlee's claim was presented, Sept. 9, 1863, and not disposed of until October, 1863. It was part of the libelous charge that Mr. Weed said that while the claim of loss on the contract in question for making guna was being entertained before the Committee, Mr. Opdyke was holding the ground, pub- licly and privately, that he had no relation or connection with government contracts. This letter, under Mr. Opdyke's hand— his own statement, published voluntarily, showed that he held that ground; for he explicitly says, "Equally groimdless is the charge against me of of being engaged with Government contracts. * * IhavenoGov- erment contracts, nor have I any business connection with the Government, of any kind, direct or indirect. ■ Counsel also urged its admission as going to mitigate damages, and, in the third place, to show provocation. The attitude of the plaintiff in this letter was that of a newspaper pugilist, and being worsted in that encounter the law would not encourage his coming into court, and obtaining satisfaction there. Mr. Field replied to the grounds put forward by Mr. Evarts. How could the declara- tion of Mr. Opdyke in September, 1863, that he had no Government contract (which was true, for after the burning down of the Armory on 13th July, the contract ceased, and he had no further connection with or interest in any government contract) tend in any way to justify the libel ? If they iirst proved that Air. Opdyke had any contract, then it might be in order to offer his letter, stating he had not. Then, on the question of pro- vocation, this letter was called out by a prior malignant attack of the defendant on Mr. Opdyke and his son ; and had it come to this, that a party could not deny aspersions on his character, and then come into court and punish the libeller? If this case proved anything, it would prove whether a man who had a press could libel any citizen at his will, or whether there was any remedy. He believed that when a man departed from his great office of being the conductor of the public press to the base purposes of private slander he could be punished effectually. Judge Mason said that he was very clear in his convictions that this letter could not be given in evidence for the purpose of laying the foundation to show provocation. The letter was dated 25th of September, '63 : the alleged libel was written in June, 1864 ; to be admissible as showing provocation, it must appear that the article complained of was written under the sting of this letter ; but it was too remote ; Mr. Weed's blood would have had time to cool. The remaining question was whether it was admissible to show Mr. Opdyke's admission of any fact set up as a defense. He did not think it was an admission of anything which the defendant claimed. It might be evidence after the defendant had shown that Mr. Opdyke was interested in partnership with others in army contracts, to show that they were secret contracts ; but he did not think it was. Those transactions were generally developed by the circumstances attendant. Another objection was that. at the date of this letter all connection between Mr. Opdyke's son- in-law and the prosecution of this contract had ceased. Defendant's counsel excepted to the exclusion of the letter. On Gross-examination— Senator Harris was asked if he knew Charles McNeil ? A. No; I understand he was a member of the Legislature. Q. Do you know his reputation? (Objected to and excluded.) Mr Emott appealed to Mr. Evarts as a lawyer and a gentleman, if it was not due to public justice the proper conduct of the case, under the circumstances it having been charged in the opening that W. Opdyke had written this letter of the 25th September, without having any letter from Mr. Harris calling for a communication from him— that the two letters which he held in his hand from Mr. Harris to Mr. Opdyke, should be put in evidence. Mb. Evarts replied that if the plaintiff^s counsel had not objected to the introduc- tion of Mr. Opdyke's letter, and it had been admitted, it would then have been compe- tent for them to have these letters put in proof, exhibited to counsel for the defense, and made the subject of comment to the Court and Jury ; but the letter of Mr. Opdyka being e5ccluded, he could not consent to having those letters received, "■ The Court could not conceive that these letters were needed foir tlie purpose of answering— not the defendant's case upon proof, but the defendant's case upon his opening. The Jury knew their duty was to decide upon the evidence of witnesses on the staud ; and although things may have stated by counsel wnich are deemed prejudi- cial, they go for nothing with the Jury unless substantiated by proof. Counsel for the plaintiff offered to withdraw all objection to Mr. Opdyke's letter, if that and the two letters from Mr. Harris were put before the jury. Mr. FiekIiepont— Will you let us see the letter ? - ' Mb, Field— When you let us read it. ' ■ ' i Judge Mason said the letters' wbuldiiot "be 'received. ^V\ 56 Mr. Pierbepont requested permission to say that in opening the case to the' Jury, lie stated he expected to prove (unless the witnesses stated diflferently from what they had down from them,) that there was no letter to which this of Mr. Opdyke was a fair reply ; and he had to say that such was the evidence they had. Mr. Field — That is improper to state in court ; I must have this whole subject stop here. Counsel for defendant read in evidence, the articles published under the date of June 18th and June 25th, the extracts from which contain the libels in suit. Pending the reading, the court adjourned till to-morrOw. The following cotrespondence was ruled cut on the trial : : ' FROM IRA HARRIS TQ GEO. OPDYKE. , .,, ; . AI.BA^^■, September 19, 1863. Mt Deas Sir : I have just read in this evening's Journal the infamous attack of " T. W." upon lyou'.r It will probably have met your eye before this reaches you I feel indignant that such a publi- cation should be allowed in such a paper at such a time as this. The whole ariicleis characterized by disgusting arrogance ; but, in the paragraph that relates to you, ihe writer seenip to have indu ged himse.f in giving vent to his personal malignity. It grieves me to think that the present editor and proprietor of the paper, who is a most excellent and well-meaning man, should be so far under the control of T. "W. as to be obliged to allow his paper to be made the vehicle for conveying to the world such a venomous attack upon a political friend, who, to say the least,' has as many friends to be offended by it as T. W. has friends to be gratified. My first impulse was to write an answer over my own signature and ask Mr. Dawson to publish it to-morrow. But as I could only meet the imputations by a qualified denial so far as my personal knowledge is concerned, I thought it better to leave you, who, as I well know, are quite equal to any such duty, to answer T. W. in your own way. I shall certainly insist upon having the columns of yfte Jbarwal open for you if you think fit to use them. Yours with esteem, The Hon. George Opdtke. IRA HARRIS. IjMtBR FROM GEOEGE OPDYKB TO HON. IRA HAltBIS, PaBLISHED IN THE AlBANY STANDARD ASD STATESMAS, ■'" 0CT0BEB12, 1863. ' New York, Sept. 25, 1863. My Dear Sir : Accept my thaakp for your kind lettpr, prompted by Mi\ Weed's attack in the Evening Journal, on myself and one pf my sons. I had read the article before receiving your letter, but did not regard it as worthy of any notice from me. I supposed that every one whose good opinion I desire knows the charges against me to be as false as they are puerile and malicious ; for I had long since convicted their author, by the Bworn testimony of unimpeachable witnesses, of the most reckless disregard of truth in a similar instance. » • A few words will show these to be of the same character. The first charge is, that my son was drafted and sent a substitute. This is not, in its worst aspect, an act worthy of censure. But when I inform you that his notice of draft found him ccftilined to his bed, by severe jllness, from which he has not yet recovered ; that he could not, therefore, have re- sponded in person , however anxious to do so; but that notwithstanding thisexemption he at once gave directions to have a good substitute procured for him — you will readily perceive that he has done all that it was in his power to do, and more than the law required of him. -And yet Mr. Weed calls fins skuOcing . No other man, I am sure. Will be able to see it in that light. But I suppose that this redoubtable Lobby Chief, in h is successful warfare against public virtue and ofiicial purity , has acquired more exalted conceptions of the chivalrous than ordinary men possess. He next charges my son with holding offices. , There would be nothing improper in this if it weretrue, unless he had bought them of some office- broker like Mr. Weed. But it so happens that he has never asked for or received an office of any kind, unless the barren commission of notary public may be regardedas such. Equally groundless is the charge against me of being " gorged with government contracts." This, if true, wouldnot be at all censurable, provided I obtained them fairly and executed them with fidel- ity ; and I defy Mr. Weed, or any one else, to point to a single business transaction of mine in Viola- tion of those rules, or of any others prescribed by mercantile honor and fair dealing. But you will be astonished at the mendacity of the charge when I inform you that these contracts, like the offices of my son, exist only in Mr. Weed's imagination. I have no Government contracts, nor have I any business connection with the Government of any kind, direct or indirect. These are the only charges. You will perceive thai they would, be^al^ogether harmless,, if true. ..Being false and maliciods, as well as puerile, they can of course injiire uo oce but their autnox.' 1 will thank you (o ask the conductors of The Evening Journal, the paper which these slanders llrBt appeared, to publish this' letter. Believe me, sincerely yours. . »: GEORGE OPDYKE. FROM IKA HARRIS TO GEORGE OPDYKE. Albant, October 3, 1864. My Dbar Sir : I reached home last evening. On coming to my office this morning I fdund yotir letter of the 25th ult. I read it with care ; it is terribly and juetly severe. For mygalf 1 have no ob- jection to its publication. The provocation is ample : the cbaatisement is amply deserved. I can sea that it would require gome self-restraint to withhold it. But, as a friend, you will allow me to sug- /^/ 51 geBtfor your consideration -whetlier in making the publication it would not he wise to omit all after Jhe paragraph ending with the words " their author." Upon reflection, I have come to the conclu- sion that I would do so. Up to this point the letter is d«/e)Mtwe. It is a triumphant viudication. I would not have the attention of the public diverted from this defense by counter-charges against Mr. Weed. And besides, I think, it would be more dignified for you. While everything you say, and pro- bably much more, is deserved, the public are already pretty well aware of it, and I would retain this " shot in the locker'' for future use in case it should become necessary. Personally, I have no choice on the subject, and I have made, these suggestions with hesitation. They merely indicate the course which I should feel inclined to take if I had such a case on my hands. Entertaining these views I have not ihown the letter to the Editor of The Evening Journal. I will still do so If you desire it, but I think you may assume that he decUnes to pi^blish it and would have the letter inserted in The Tribune, I will see that it is copied into The Statesman. The part of the letter which I propose to have you publish is exactly right. The allusion to former charges is very proper. I see nothing, not even a word, in all that which I would change And now, my dear sir,! trust you will excuse me for the freedom with which I have written. I have done soin the spirit of thesincerest friendship, and with the feeling that an outrage had been committed upon you, and that its author deserved to be punished. Your own better judgment will decide what value there may be in the suggestions I have made. Yonrs with esteem. IKA HARRIS. The Hon. George Opdtke. SEVENTH DAY. WEDNESDAY, DECEMBEE 21 ST, 1864. At the opening of the court, Mr. Pierrepont said: If your Honor please, you will remember that in the progress of the case yesterday, certain letters were ruled out of evidence. In the Tribune of tliis morning, these letters are published in the proceed- ings of the court of yesterday. I call your Honor's attention to it simply to say that you will remember that yesterday, when the subject of whether we would consent to have any such letters appear, was under discussion, and somewhat warmly, yonr Honor stopped us all, and put an end to the matter ; and we had, of course, no opportunity for any consultation whatever about it between ourselves until last evening. We are relieved this morning from what we had altogether, on consultation, determined to do, by the letters appearing in the newspaper. We had stated, in our opening, that this letter of Mr, Opdyke's, wliich is thus published, was not a fair reply, or real reply to any letter which had been received. That information we received from such a source, and with such particularity, that it seemed impossible that we could be mistaken upon that subject. The letter of Mr. Harris, which is published this morning in the Tribune, we wish to state, is a letter to which that letter of the 25th of September is a fair re- ply, 'the letter is as extraordinary as the information that we had received on the sub- jects- that there was no letter to which this was a fair reply. But we wish here to-day to state that we do consider this a letter to which the other is a fair reply. Mr. Field— If the court please, while the matter is under consideration, I beg to state that the recollection of the learned counsel in respect to what he said is not ac- curate. What he did say was this : •' Would you believe it that this statement concern- ing this ' kind letter ' which had been written to Mr. Opdyke, was, every word of it, a lie. Senator Harris never wrote him a word in reference to the subject ; it was a mere concoction, and the very envelope that carried this letter, asking it to be published in the newspapers, contained a private note, asking to be allowed to use this trick and this fraud." Now they had this private letter oif Mr. Opdyke's, which they call a trick; and it has no reference to a trick. '.Mk. Pierrepont — I have no farther remarks to make. Defendant's counsel was about to proceed with reading the articles, containing the alleged libel. Plaintiff's counsel objected to reading the whole of the articles, which were very long, and the great proportion entirely irrelevant to the subject of the libel. ' Mr. PiKRRBPONT— If anything is settled, it is that the articles, from which the libels are selected, may be read. Court — I understand the rule to be, that the counsel may read all in the libel that has any reference to, or can in any manner be said to relate to, the subject the libel is founded upon. It is difficult to discriminate. Perhaps it is as well to let all go in if de- Bired. Mr. EvARTS-^We- cannot divide iti . Plaintiff's counsel excepted to the admission of the articles at length. Mr. Pierrepont then concluded the reading of the articles. ;>•■ ' TESTIMONY OF JOHN C. FREMONT. , JosM C. Fbemont waaiihen called &n the part of the defense, though oat of order, as 58 the counsel stated, in order to accommodate the witness in view of his engagements. He testified as follows : My residence during, the last eight years has been iu California and in this city ; I was the owner of mining property in California known as the Mariposa estate, about 44,000 acres ; I had been owner and part owner about seventeen years; in the Summer of 1862 it became the pubject of a stock incorporation ; it had been worked since the Winter of 1845-9 ; the product was principally gold ; there were other minerals in lesser quantity ; it was worked by surface washing and regular mining in the vein: it had produced from' surface washing a number of millions of gold; I cannot state the amount, as the accounts were loose ; from regular mining I suppose it had produced about $3,000,000; it supported several thousand people; several companies were established on the property; that was the state of it at the time it became the sub- ject of incorporation ; I then owned five-eighths, and held the legal title to six-eighths ; the remaining two-eighths were owned by Frederick K. Billings and A. A. Selover, each one-eighth ; the beneficial interest m the other one-eighth was in Trenor W. Parke ; all these were Californians ; since the incorporation they have all become residents here, or in the Eastern States ; it was valued at $10,000,000 ; that valuation was fixed upon it in all the different negotiations founded upon what it had produced regularly ; it was first a subject of negotiation in San Francisco at that valuation, then in England, France and Germany; the entire property went into the corporation, including the shares of the other owners; everything that belonged to the estate, movable property and all; no other property went in that I am aware of; the property was subject to incumbrances, or liens, at the time the negotiations commenced, estimated to be something over $1,250,000 ; on settlement it was found that there was about $1,000,000 more required to pay the debt; the monthly interest account was about $13,000, the larger part being at two per cent, a month, and a large part of that compounding monthly ; we undoubtedly took into account the debts, in estimating its value aj $10,000,000, which was considered its value as it stood ; the negotiations to form the company here commenced about the end of August, 1862 ; I was then very slightly acquainted with Opdyke'; I knew him in 1856, in connection with the political campaign, as one of the members of the Republi- can party ; I did not know Morris Ketchum prior to the time of the negotiations, iu con- nection with politics — only generally, as a man of business here ; I did not know Hoey prior, except by reputation ; I had known Selover and Billings in California well, and I had personal acquaintance with Simon Stevens prior ; he resided in this city, and was engaged in business here. Q. State how these negotiations commenced and how you were brought in connec- tion with Opdyke, Field, Ketchum, and Hoey concerning them? A. A few words of explanation will be necessary ; as I have already stated, various other negotiations had been attempted ; in the spring of 1861 1 went to Europe with Frederick Billings with a view of procuring a loan to pay the debts of the estate and form it into a company ; soon after our arrival there it was found the undertaking would be very difficult or impractica- ble, on account of the near prospect of a civil war; some attempts were made, and some not very positive offers were received; they were not accepted; when the war broke out I returned to take part in the public service, leaving Mr. BilUngs to continue his attempts at negotiation ; in the summer of 1862 I returned from Virginia to this city, and found the condition of my private affairs such, especially as regarded the Mariposa property, that it. required my immediate attention ; all the attempted negotiations had failed ; Billings had tried in London and Paris ; had returned to try in Philadelphia and New York, and had then gone to Germany, and had failed there ; the debts of the estate were very pressing, and it had been for some time in the hands of a mortgagee ; it had been turned over into the possession of Mr. Parke, who had advanced a large sum upon it, to whom it had owed a large sum, and some other debts were worked out of the property ; in that condition, in some conversation with Major Stevens, I proposed to give to him and others whom he might associate with him in the undertaldng, one-fourth of the prop- erty, for the consideration of procuring the amount necessary to pay the debts, and form it into such a company as was desired ; about the 1st of September, Stevens proposed the arrangement to Morris Ketchum, as I understood, and, after various conversations, Ketchum deputed Mr. Allen, who was about to go to San Francisco, to examine the estate and report Upon its condition ; Allen did so ; he examined it in October, and reported in December, and the subject was then, or previously, communicated by Ketchum to Opdyke and Hoey ; he associated them with him, and the negotiation went on until about the first of March, 1863, when Hoey was sent or went, on the part of him- self and associates, to California, with a view to re-examine the property, to ascertain if it was such as had been represented by the proprietors, as it had been confirmed to be by the report of Allen ; in the meantime other negotiations had been concurrently car- ried on in California ; there had beeii some offers made; Guille, whose principal house was in Paris, repeated an offer which had been made to me in 1861, viz : to furnish or lend a million of dollars to pay off the debts, in consideration of which he was to receive as a bonus one half of the property, I to have the entire control or possession of it; Billings had made a proposition to two gentlemen, one or both of whom had been or /J'L 59 were bankers of the estate in San Francisco, John Parrott and Mr. Loonan; his propo- sition on the part of the proprietors was, to divide the estate into tenths, to give me five-tentiis, to Parrott and Loonan two-tenths, to each of the other proprietors one- tenth, and to outsiders two-tenths ; these negotiations were pending ; these gentlemen were to advance money to pay my portion of the debt, to be estimated only at a million ; and they were to have an interest on the whole debt of one per cent, a month, and to retain, in the proportion often to one, my stock until it was paid ; the ordinary rate in California at that time was from 2 to 1\ per cent, a month ; the proposition was rejected by these gentlemen, they requiring to divide the property into eighths, and to receive two-eighths instead of two-tenths; it so stood in the early part of the negotiations ; they subsequently came to believe that it would fail here, and that they could obtain the property on much better terms ; they were creditors to a considerable amount ; they finally came to demand that the estate should be divided into thirtieths, of which they were to receive 14 ; I 7, and each of the proprietors 3 ; Billings who acted for me also in California, wrote me about that time, repeatedly, that I must succeed in the negotiation here, or I would lose my estate there ; that I had only the alternative of success here ; this was about March, 1863 ; I then concluded to go on with the negotiation here ; I con- sidered that three-eighths of the estate, with its debts paid, and the property put into a revenue-paying condition, was better than none at all ; I, therefore, did everything in my power to carry forward the negotiation here; about the end of June the settlements were all agreed upon, the papers were executed, and the company formed ; bonds were to be issued to the amount of $1,500,000, by them, and debts were to be discharged ; that was specified in the contracts drawn ; in the progress of the negotiation my intention and understanding were that the debts were all to be paid — all that had accrued in under- taking to develop the estate and defend it against the attacks of the General Govern- ment; in the course of the negotiations that came to be changed in some way, so that what was strictly regarded as liens, such as held the estate, were to be paid; it was made a subject of the contracts. Q. While you were in Europe was the unsettled state of the title an embarrassment in the matter, and when was it removed? A. It was finally removed by the issue of a patent in 1856 from the General Government; that had been a great impediment to ne- gotiations iu Europe and in this country, and to the proper working of the estate, and had been in a great measure the cause of the depressed conditions, of the estate— the embarrassment growing out of the Tttack of the General Government upon that title and many others in California; before these negotiations were ended here all that had passed away, and the title was assured, and it was purely a question of raising the debts from the property; one hundred thousand shares of stock were issued, at tlie par value of $100 ; Selover received 12,500 sliares ; Billings the same, and Parker the same ; they have held some that they received then clear of all contribution ; the balance, 62,500 shares, represented my five-eighths; under a written agreement which accom- panied the contract, 25,000 shares became the property of the three gentlemen who en- gaged to form the company and obtain the money necessary to pay the debts, namely, Ketchum, Opdyke and Hoey ; that left me 37,500 shares ; of that, under the same written agreement, two thousand shares were paid to Mr. Field ; no other distribution was made of that remaining amount, so far as effected this company, except two thousand shares to Stevens ; that left 33,500 shares, of which 25,000 were placed in the hands of Ketch- um, leaving me 8,500. Q. What became of that 25,000 to Ketchum? A. It was made the subject of a writ- ten agreement between Ketchum and myself, of which I, probably, have a copy among my papers ; (Mr. Field here offered a copy of the paper, which was identified, being dated May 19, 1863, and executed about that time ;) this matter came up as one of the subjects of discussion at the close of the negotiation ; it was required, I think, by Ketchum. Q. What did you understand was the disposition required of this additional 25,000 of stock? [Objected to as a transaction between the witness and Ketchum alone, and in no way connected with the plaintiff. Objection overruled : exception taken. A. Ketchum stated that the gentlemen who undertook to form this company here, and to be in some^measure responsible for it, desired to be able to control it here rather than to have it controlled in California, as they were? fearful that ife might, if I should make any change in my ownership and transfer a large part of my shares ; and that in view of the accidents to which I was professionally exposed, which might occur sooner or later, he wished to be protected against such contingencies ; for that purpose he desired to retain control over that amount of stock in order to enable him to vote upon it; I re- garded it as a concession, and after some debate, yielded it ; I regarded Ketchum's in- terest as in connection with others. ' Q. What did you understand to be the form or degree of control over these shares that was asked for? [Objected to. The Court— You may answer.] Was it simply the right to vote ? A. That was the reason given by Ketchum. 60 The Court— Q. Still the stock was actually transferred ? A. It was transferred to him to hold in trust. Mr. EvARTS read the agreement between Fremont and Ketchum, transferring the 25,000 shares for a certain time, or until the bonds, not exceeding $1,400,000, wdre paid, when they were to be re-transferred : in the meantime, Ketchum was to vote always ■for Fremont, so long as they remained in his hands, and should use all his powers to make the dividends fifty per cent. Q. What caused the issue of $1,400,000 in bonds ? A. It was ascertained by Hoey, in Calit'ornia, that that would probably pay the debts ; the nearest amount to which he could reach ; the remainder was proposed to be used in further developing the prop- erty ; the bonds were to be a first lien. At what stage of the transaction did the payment of the 2,000 shares each to Stevens and Field come up ? A. The amount originally offered by me for this arrangement was quarter of the property ; in the course of the negotiation, it came to be held by the three gentlemen, Ketchum, Opdyke and Hoey, that thatquarter belonged principally to them, and that Stevens was not entitled to a very large share ; there was some disagree- ment in regard to it, and as there had been a change in the form of the negotiation which gave to me a rather larger amount of shares than I would originally have been entitled to, I gave to Stevens myself voluntarily a certain amount, which amount com-, prehended both those amounts of 2,000 shares to Field and 2,000 to Stevens. Q. How and when did you learn that 2,000 shares were to be paid, or desired to be paid to Field? A. Prom Field himself, shortly before the conclusion of the transaction, I think. Q. Were communications passing between you here and the California parties at the close of the transaction? A. Constantly, very frequently, by letter and by telegraph ; in the month of November I learned more distinctly that 1 must close it here ; from the first to the close of the month we communicated daily by telegraph. Q. On what ground was there an agreement that you were to part with any shares to Mr. Field ? A. There had been an agreement to part with a cei'tain number to him, embracing those that Field was to receive ; I had no arrangement with Field in respect to the shares; his understanding was with Stevens. Q. Did you know it was 2,000 shares till Field informed you? A. I did not. Q. Up to that time the agreement was whatever Field was to receive you were to pay ? A. I knew that it was to come from me, but not in that way ; I did not know the amount ; it was to be in consideration of his services as counsel and legal adviser in this negotiation ; the proposal was originally made to Stevens to undertake to find men of sufficient financial strength to accomplish the negotiation, and to him the oifer of one- fourth of the estate was made, with such associates as he could procure. Q. Then these payments to Field was, in fact, outside and in addition to the one- fourth ? A. They were, as it turned out. Q. What finally became of the 25,000 shares that went to Ketchum under this paper ? (Objected to as in no way connected with the plaintiff.) ' The witness further stated that he presumed Ketchum claimed the control of the com- pany in the name of his associates, and that Opdyke was present at the time the propo- sition was made ; the three gentlemen acted together. The Court allowed the evidence to be given upon thfe statement of Mr. Evarts that he intended to connect the plaintiff with tbe transaction. Witness — The agreement said it should be transferred, but it was issued originally to Ketchum at the time the other issues were made ; the distribution was the subject of a written agreement; the whole of it was transferred by Ketchum to me ; it was origi- nally the subject of a suit on my part, but the suit was discontinued. By the Court— Do you know whether Opdyke had any connection Avith this parti- cular matter? A. 1 do not know distinctly ; he may have had, but to what extent I do not know. By THE Court— Do you know that he had not? A. No, sir, not certainly. Mr. Evarts— He knows the result. Witness^ — Yes, sir ; it was transferred to me, or made subject to my control. Q. What was the result ; how did it come back toj^ou? ^(Objected to.) ', ' The 'Court allowed th^ evidence, upon the statement of defendant's counsel that he would connect it with the plaintiff. (Exception taken.) Witness- The transfer to me was upon an arrangement that I should sell 5,000 of these shares for 25 cents to Mr. Hoey, I believe, for himself or for Ketchum ; I have un- derstood from one of the parties that the object was to have as larg€ a control still, in the same sense, of the stock. Q. What was the market price of the stock at the time you were to seH it at 25 ? (Same objection.) A. It was considerably above 25 — some 10 or 15 per cent, I believe ; it was done, I think, in October, 1863 ; the stock was then sold at the public Board of Brokers. . V, 61 • Q. In whose checks were you paid? A, In two separate checks signed by James Hoey ; Opdyke was not in any way connected with the checks ; the two checks paid for the whole ; I believe a million and a half of bonds have been issued ; what amount ap- plied to the payment of the debts I can only state from the hearsay ; it was a matter carried through while I was one of the directors ; I believe the whole amount was ap- plied to the payment of the debts ; that question came up as between the company and myself; I think there were found to be something over $2,000,000 of liens ; legally, they might have been less, but upon arrangement with the creditors they amounted to that. Q. Do you remember anything about a parcel of $280,000 of those bonds being a sub- ject of controversy between you and those associates? A. About the time this suit be- gan, I had understood that there was that amount unappropriated, out of which I re- quired that the incumbrances which were not liens, should be paid, but my knowledge on that point is indefinite ; I suppose I learned such to be the case ; I commenced a suit to enforce the payment of those incumbrances by the company, and it was finally ad- justed between us; what became of the bonds, I do not know ; it is well to say, in this connection, that those debts, not liens, were finally paid by myself, and not by the com- pany ; I paid something over a quarter of a million — not that special amount of $280,000 — which I contended those bonds ought to be applied to ; I know John J. Howard, who was a resident of California ; I formed his aquaintance in 1856 here as a, member of the Eepublican party ; our relations were quite intimate and confidential; I learned that he left for Europe some weeks ago. Cross-examined by Mr. Field.— ^The best offer I got in Europe or anywhere else was the one which was repeated by a branch of the house in San Francisco, as I have stated, viz : one-half of the estate as a bonus, a loan of $1,000,000 to be returned with interest, and thus one-half of the profits to go to the old proprietors ; that was subsequent to the perfection of the title ; I saw the Rothschilds ; Billings may have received better offers, Imt that was the best I heard from him ; the offer to Billings in Philadelphia was to con- vert $750,000 of the indebtedness into 20-year 10 per cent, bonds, for which the promot- ers of the enterprise were to receive from one-fifth to one-fourth of the estate ; the dis- position made with Ketchum was the best I was able to make subsequent to the confir- mation of the title ; when I returned from Virginia in 1862, beside the incumbrances of $1,250,000, Brumager had a claim of one-eighth of the estate, and Parke's claim was one which I discussed before recognizing it; it was one-sixteenth; the claim of Brumager had no foundation, but he made it ; it was for $225,000 at two per cent, a month com- pounded. Parke's was for $400,000, embracing the other one ; he claimed also on be-, half of Loonan part of a claim amounting to several thousand dollars, to be paid in gold; there was also due workmen a large amount; I had ceased to receive remittances from the estate ; the product should have been greater than the interest account, but I found the debt increasing ; when I returned to California, I proposed to Stevens to sell the es- tate ; after various conversations the result was this offer from me ; it was through Ste- v^ens that Ketchum was brought in, and executed the deed of one-quarter the estate to Stevens and Ketchum in December, 1863 ; the agreement by which I gave him 7,000 shai'es was sometime subsequently, if my memory serves me ; (deed executed Dec. 12, 1863, produced to fix the date ;) it was about that time that the articles of association were drawn and sent to Albany; there were discussions extending over nine or ten months ; {paper of 24th of Janua.ry referred to to fix date of agreement to transfer the 5,000 shares, which witness thought was later;) at that date I had made no arrange- ment with you about your fees ; I authorized your retainer at the commencement of the negotiations; the arrangement with you I left to Stevens ; I never knew what it was till you informed me— until the 2d of July ; there was a conversation in your office on that day, which is identified by this paper, respecting the amount to be issued to Stevens, about which there was some discussion ; it resulted in my inquiring, of you the amount of your demand, or what you received. Q. Was not this the occurrence precisely? You preferred not, then, to issue it, to Stevens, for certain reasons ; I then asked you whether you had any objections to di-. recting the issue to me immediately of what was to come to me ? A. Yes, sir. Q. And you immediately replied, " None at all?" A. I remember that my answer • was immediate to you ; that I agreed to it and wrote a note to Ketchum. Q. Do you remember saying, when I told you what it was, " Yes you richly deserve it," and wrote the note ? A. I made some such remark. Q. Now, if my fees had been 5 shares pr 5,000 shares, would that ha.ve:lessened what you were to receive from the establishment? A. No, sir. Q. The whole came from Stevens did it not ? A. It came from Stevens ; that is, from the portion he was entitled to,' Q. Was not the basis of the scheme, then, the issue of 36,000 shares of stock for thft payment of the debt, and to get cash subscriptions? A. Yes, sir. ;.,; jQi iThatt TBTosld Leaj^e you one-JjaJf ^ Qt32>Q00 shares,excluding:any ciaint;&f Parke; foe one-eighth? A. That was the arrangement to which we came in the last negotiation. (Objected to as not pertinent.) Mr. Field— The claim is that these gentlemen, working on Fremont's political aspi- rations, proposed to put his estate into their hands for the purpose of making him a Pre- sidential candidate. The Couet— I don't see how it reflects on the libel. Mr Field— I am only showing that he finally received not 32,000, but 37,500 shares, and realized as a residue more than a million of dollars more than the original offer, and that there was no exaction at all. The court ruled the evidence admissible as part of the negotion. Question by the Court— State now what the arrangement was ? Witness— An arrangement of the kind you began to describe was made, as the first one, in which the debts were to be paid from the sale of a certain amount of stock set aside for the purpose ; that arrangenient was afterwards changed^and it was provided that the debts were to be paid by funds issued upon the mortgage of the property ; that ^ave to the proprietors a larger amount of stock than they would have had if a part had been taken with which to pay the debts ; I received a larger amount of stock in conse- quence. Q. During all these negotiations, was there any pressure upon you, on the part of any of these gentlemen, to get you to Come into the arrangement? A. No ; there was a negotiation which they conducted on one side, and 1 here on the other ; my copart- ners in San Francisco contributed their parts. Q. The urgency, or pressure, if any, was it not on your part, to get it accomplished, rather than on theirs to get you to-do it? A. I think so ; at least I felt as strong a dis- position, or. stronger, to carry it out than they did ; but I do not know what their mo- tives were, more than that. Q. Was any unfair advantage taken of yon by any of these gentlemen in any of these negotiations? A. No, I think not. Q. Now, to show how great the urgency was for a consummation of this affair, I ask you to look at this telegram, d ted November 4, 1862. Did you receive that? A. O, yes, I received this from Mr. Billings : " Allen left by over route ; Doyle takes powers ; matters press ; relief or ruin ; you must do something. Fredk. Billings." [Counsel produced a large number of telegrams, which were identified by the wit- ness, and read some of them urging the necessity of an arrangement, and the need of coin to pay the Parke claim and others. " Dec. 9, 1862. Parke gives possession, if his accounts are passed at $1,400,000 in coin. Take possession if you consent to pass his account." Jan. 16, 1863. " Your position with Ketchum makes it inconsistent with me to longer hold your power of attorney ; I will substitute any one you name. . . Ketchum only paid currency. . . Do not be surprised if you lose the whole estate; after your gal- lant fight, I grieve that on the eve of victory, you should only have defeat."] Q. In all the negotiations you had with the gentlemen named by you in this examina- tion, did they not honorably and fairly carry out their various agreements with you to which you have referred ? A. I think they have ; you remember there were controver- sies which were adjusted as they came up, growing out of our different interpretations of the agreement. Q. In point of fact, the debts proved to be a great deal more than was expected. A. Yes, sir. Q. It was expected that the debts and incumbrances would be one and a half mil- lions, and they turned out to be over two millions, and a large number of private debts whichihey paid in addition? A. Yes, sir. Q. Who is Mr. Doyle, referred to in the telegrams? A. Mr. John T. Doyle, a law- yer in San Francisco ; he brought powers to act for Billings and Selover ; there were long negotiations with him here ; I came to Mr. Field's house in negotiations with him, sometimes in the night, sometimes in the evening, and sometimes in the morning ; there were long discussions with him. Q. What was the difiBculty with him in regard to arrangement? Was it not that the other two co-owners, Billings and Selover, insisted upon certain terms which the gen- tlemen here were not willing to give ? A. Some of it was ; I think the principal diffi- culty was with Mr. Doyle himself; he was quite an impracticable man ; I know at one time you asked him if he could himself write anything, to which he would agree as hia arrangement, and he did not succeed in doing it. , Q. While Mr. Doyle was in San Francisco, was there not a vast deal of negotiations going on in reference to the matter? A. Yes, sir. Q. State how long this negotiation was? A. I can only say they were long, and dif- ficult, and complicated, because some of the proprietors of the estate were in Califor- nia ; it required to be examined very particularly, to see whether the statements made by the proprietors were borne out by the facts ; that, coupled with the fact that the /ff^ 63 money to be paid out was large, made the negotiations long, tedious, and laborious ; I know Mr. Field had a great deal to do ; he was very much occupied with the negotia- tions -, he gave a great deal of time and attention to it, and a great deal of care necessa- rily, from the time I first spoke of to the time they were consummated. Q. Are your relations with these gentlemen still friendly? A. They are. Q. Are your relations with Mr. Ketchum intimate and confidential? A. They are he is my banker ; my relations with Mr. Field are confidential and friendly ; they are the relations of counsel and client ; he is still my counsel, and until recently he had quite a large number of suits of mine in his hands ; within a short time a settlement of several of them took place. Qi I call your attention to this passage : " More than a year ago Mr. Opdyke and others reminded Gen. Fremont that when a candidate for the Presidency in 1856 he was weakened by pecuniary embarrassments." Is that true? A. That statement is not correct. P. Was there one word mentioned to you on political subjects by these gentle- men? A. There may have been; there was nothing said to me that was personal to myself, as intimated there — nothing of that kind. Q. " And that as his friends intended to run him again, it would be wise to put his affairs in better shape " Did that occur ? A. I have no recollection of anything of that kind^ I am very sure there was nothing of that sort. 1 Q. It proceeds : " The General assented." Is that true or false ? A. The character of that is shown by the previous testimony. Q. " Giving to Messrs. Opdyke, D. D. Field, and Ketchum a schedule of his debts." Is that so? A. A schedule of the debts of the estate was given to these gentlemen early in the negotiation— one brought by Mr. Doj'le and another by Mr. Stevens^at the time of the offer, in the first conversation ; it was necessary to make them acquainted with it ; not a schedule of my private debts, but the debts of the estate ; the list I gave was a list of the debts of the estates ; they were not required to pay my private debts. Q. The $280,000 bonds you have been asked about, were they not all applied to the payment of the liens? A. I believe that they all were; I so understood it; the ac- counts of the company show that they have been. JRe-direct : Are you able to say that, during the period of time these negotiations covered, you had no political conversation with Mr. Field or Mr. Opdyke, or any of those other gentlemen ? A. No, I cannot say that ; but I can say very distinctly that no con- versation of that character took place. Q. None in which your debts were brought in connection with the subject of politi- cal purposes? A. No ; I can say so distinctly; for the reason that I myself intended to avoid, and did avoid, any such conversation as that; there were the usual prelimi- nary conversations that occur bettveen men when they meet together — political and military — but nothing personal ; I intended to avoid such conversations, and did ; I did not intend that gentlemen with whom I had business relations should suppose that for that reason I would attempt to obtain their friendship in any other way. Q. You were nominated for President during the last campaign ? A. Yes. Q. What was the beginning and end of those negotiations in point of time ? A. I think about the first of September, 1862 ; the proposition was made to Mr. Ketchum, and he was paid on the 2d of July, 1863. Q. During that time, how many occasions did you have for professional interviews with Mr. Field ? A. There were many such occasions ; it would not be possible to re- member them ; they were very frequent, because the negotiation was diflScult and long ; a meeting would usually take place on the receipt of any telegram, or letter, or upon a reply; with the details in Califoi'nia we had nothing to do here, except to receive the reports, and be informed of what progressed there ; there were frequent letters and telegrams; probably on some occasions letters and telegrams were received from California daily. Q. With the exception of the visit of Mr. Doyle, the attorney, was there any agent from the other side with whom those interviews were needed to be had by Mr. Feld? A. Simply Doyle. Q. Was Mr. Billings a lawyer ? A. Yes, and Parke also; Seloverwas not; he was engaged in other business at San Francisco. Q. Did the shares of Parke or Billings, or Selover contribute to any of these bur- dens of getting this property into shape, or did it all fall upon your five-eights ?• A. It has all fallen on my five-eights ; there is still unsettled controversy on that point with those gentlemen ; but, as it now stands, it has fallen upon my five-eights. Q. Do I understand you rightly, that your proposition to Simon Stevens was to part with one-fourth of the estate, to cover all things in bringing it into availability ? A. Yes ; 25,000 shares covered that proposition. Q. The 7,000 shares more were to go to Mr. Stevens, and include whatever was to be paid to counsel, and what was actually paid Mr. Field as counsel? A. Yes, sir. €4 Q. In what stage of the matter did that 7,000 shares additional come np ? Ai It ap- pears, by the contract marie with Mr. Stevens, that it came up in January. Q. Those negotiations in Europe, to which your attention has been called, were all broken off at a period that the pending or threatening civil war prevented negotiations ? A. Yes, sir ; I was informed that in the near prospect of civil war, it would be impossi- ble to make any advantageous arrangement in London ; Mr. Billings wrote to me from Germany that, if the estate were of solid gold, no arrangement could be made there ; I acquiesced in that view. i Q. Was there any dispute or difficulty as to the right of the other owners— Selover Parke, and Billings— that these gentlemen here had to attend to; was not their shares fixed and understood as between them and you ? A. Yes, absolutely. Q. These gentlemen here did not do anything toward arranging their relation to the property? A. No ; they might have contributed a friendly aid; there was no dispute in which these gentlemen were involved ; the controversy was between Mr. Parke and myself, so far as there was any ; these other parties had nothing to do with it. , Q. Did they contribute any money toward working or arranging any of the diffieyl- ties between you and any of these associates ? A. They did, to the extent of advancing- money to me personally - -amounts which were required in settlement. Q. Of the debts of the estate? A. No'; in respect to the portion of those debts which belonged to the different proprietors; there was such an advance made in tie case of Major Selover— a temporary advance by Mr. Ketchum, as my banker. Q. Did any of these associates pay any money of their own in discharging any of the debts of this estate — whether liens or not liens — or were they all provided for and dis- charged out /■/ the credit of the new company ? A. I suppose that thej were finally to be provided for out of the credit of the new company ; whether or not, in the early stages of the existence of the company, these gentlemen advanced money themselves, or. took a certain number of bonds, I do not know ; I have understood that they did, but i do not know. Q. But otherwise, do you know of any contribution of money or property, in any way, toward making up the capital of this company, which was held for its debts,: and which its stock represented, except the Mariposa property? A. No, sir. •'- • Be-cross—Q. Did they not advance the whole money, to the amount of $1,500,000 ta pay the debts of the estate ? A. I have answered that ; I do not know whether they ad- vanced the money and took the bonds, or whether the lands were sold ; I know they ob- tained money and the debts were paid ; I did not know of bonds selling at 70 ; recently they have been quoted at par ; they have been below par ; they were not below par, I think, at the formation of the company. Q. You were asked if you were a candidate forthePresidency ; did any one of these gentlemen do anything whatever in reference to your nomination ? A. Certainly not, to my knowledge ; if you mean to ask whether these gentlemen were politically friendly to me or not, I can say that I never considered them so, except, perhaps, Mr. Hoey, and of him I know nothing particular. Q. I think you will say emphatically that, so far as your counsel is eonq^rned, you understood he was not? A- Yes ; I never held him to be a political friend. Q. In the course of the negotiations, were there not a great number of telegrams back and forth from California? A. There were many telegrams, sometimes an expense, of $150 a day for telegrams, day after day. Q. Why did you give the subsequent 7,000 shares to Mr. Stevens? A. Because of some disagreement between the other gentlemen— Ketchum, Opdyke, and Hoey— as to the amount he should receive; he had no right to claim it from me ; he might have had a right to claim it from the other gentlemen ; I gave it voluntarily, for the purpose of facilitating negotiations. Q, Except the suits settled, are your other suits in Mr. Field's hands ? A. Yes; oner is by Mr. Loren Jones against me. ; Re-direct Examination— Q. Do you know whether Mr. Stevens, received any part of the 25,000 shares that went to Ketchum, Opdj'ke, and Hoey? A. I do not know ; 1 haye' not been informed he did. :- Re-cross — I presume that Mr. Ketchum and his friends advanced Hoey's expenses to California ; I did not hear of their being paid any other way ; they paid expenses of telegrams, amounting, as I was informed, to $150 a day for a period. Be-direct — Do not know the amount of Hoey's expenses ; I did not ask these gentle- men to advance these expenses during the progress of the negotiation, as personal debts of mine; I understood, as a matter of course, that th«y were expenses belongiog-to the formationof the company. : : i TESTIMONY OP T. C. FIELDS. v^ Thomas C. Fields, sworn — Examined by defendant's counsel — I was employed as counsel by the Committee of Supervisors on Eiot Claims, on behalf of the Citjr ^r;s^ 65 and County; went there first on August 20th, 18G3 ; claimants made written statements, an^l my examination was in the nature of a cross-examination on tliose statements. When we came to the claim of Mr. Farlee, Mr. Blunt said to me that he desired to investigate this claim himself, for the reason, as he stated, that he was an expert at the business, and he thought he could conduct it better, or as well as I could ; he said lie did not desire me to be present; I was in the room, conducting other examinations, at the time the examination of this claim was proceeding ; I heard por tions of the testimony, as I was sitting near ; when Mr. Blunt was ready to report, I protested on the part of the city ; I objected to the action of ^the Committee upon the claim, and stated that I considered it my duty, on behalf of the city, to suggest the pro- Ijriety of examining witnesses on the other side, that all the parties that had been ex- amined, with perhaps one exception, were the agents or the employes of Mr. Farlee or Mr. Opdyke ; I used Mr. Opdyke's name at the time ; I stated I thought General Whit- ney, who was in the cfty, and who had been four j-ears Superintendent of the Springfield Armory, should be examined in regard to the arms, as he was familiar with guus and with the machinery for making them, and with this very arm; I stated this to the com- mittee, to Mr. Blunt; they wereiill, or a majority of them in the room ; Mr. Blunt said he was satisfied, that he was ready to report on the claim, and ready to act uponit; I then stated that it was a matter, as the Maj-or was connected with it, and tliey were all members of the City Government, about which there might be some public "discus- sion, and I suggested the propriety of having the investigation as thorough and exact as it had been in other cases; it laid over a day or two ; no witness was examined, and the claim was passed ; I was present when it was passed ; Mr. Purdy. Mr. Opdyke, Mr. Ely, Mr. Blunt, Mr. Davis, aud the Comptroller were present : I think a full committee ; Mr. Opdyke made a statement i^ regard to the claim ; I think he said that a large por- tion of the claim came to him ; that he was interested, and did not desire the committee to be controlled by what he said. » h Q. What did he say further? A. T do not know ; only he said that the loss had been more than the claim, in his judgment; as they were passing on the claim, I suggested to Mr. Purdy the indelicacy of ?\Ir. Opdyke remaining present when the vote was taken, or voting on the claim ; Mr. Purdy suggested to \Mr. Opdyke, and Mr. Opdyke either walked out of the room, or to the door, when the vote was taken ; the claim was then passed, after a deduction of $199,700. ■ ^ Q. It was not referred to the Fire Committee, or any one ? A. Xo, sir ; it was passed I think, the second meeting after the investigation ; one gentleman proposed that they should pass the claim, deducting the odd cents ; another suggested that that wcTuld be a ridiculous reduction ; I think the suggestion of the $199,700 was made by the Comp- troller. Q. Were there other claims for guns before the Committee ? A. Yes, quite a num- ber ; the examination on those other claims, were most thorough and extended, to my mind ; Mr. Blunt had the supervision of these claims, too ; witnessess were examined to reduce the amount ; I recollect the claims of Mr. Emerson, Mr Remington, and one rep- resented by Major Taylor ; there was a most thorough investigation of these cases, and witnessess examined on both sides ; I was present when several were investigated. Q. Did you have any conversation with Mr. Opdyke in relation to this matter? A. Not in relation to the claim ; I had in relation to the contract for manufacturing guns ; it was before the fire ; Mr. Opdyke informed me that he had a contract with tlie patentee, by which he was to advance certain money, and I got the impression that he was to re- ceive a percentage of the profits — I think 60 or 65 per cent. Ooss-^xamin^d— There was no other case before the committee of the " destruc- tion of a gun factory, that I know of ; the other cases of guns were of parties whp had guns stored, or where there w^re guns in hardware stores ; I did not take part in all the claims that were disposed of ; other investigations were conducted by single Supervi- sors, sometimes one"member, sometimes another ; subpoenas were issued for witnesses la some cases ; I suggested in this case to send for Mr. Whitney, Mr. McNeil I think, the patentee himself, and some others ; Mr. Whitney had examined the machinery, and was familiar with it. Q. Do you mean to say your recollection is distinct that you suggested Mr. Opdyke's leaving the room? A. It is very distinct; Mr. Opdyke had said nothing about leaving the room before I suggested it ; if he had I would not have suggested it ; I do not think this claim was put to the vote more than once. Q. Was any other claim put to the vote while Mr. Opdyke was there ? A. There may have been, but I think Mr. Opdyke was sent for when this claim came up to be passed upon; I think Mr. Purdy stated he would not consent to the passage or consideratioa of the claim unless the Mayor and Comptroller were present, and he sent for them. TESTIMONY OF EDGEWORTH BROWN. Edgbwokth Bkown, sworn. Examined by defendant's counsel : I have had aa expe- 5 ' : 66 rience of ten years in selling machinery, and five or six years in the trade ; am engaged selling machinery for the Stover Machine Company; machinery in use from as early in 1862 to July, 1863, would depreciate forty to fifty per cent. ; the tools used in a gun factory ■would depreciate about the same; after a shop is once started and complete, 150 men being employed, two or three men would be enough to keep the tools in order ; the, machinery that we [Stover Machine Company] put into the factory must necessarily have depreciated from the time it went in i;p to the time of the fire ; we furnished a large lot of milling machines and some engine lathes ; I am now connected with the Stover Machine Company ; I have examined the books ; I made out the list produced here and used in evidence ; it is a coi-rect list of what we furnished this factory. Cross-examined. There are two kinds of milling machines ; they vary in price ; the price at which we sold was about $265 ; fro-m December, 1862, to July, 1863, machinery would depreciate from to 10 to 15 per cent. ; can't say how soon'machinery in a gun fac- tory would be used up ; when I speak of depreciation in value, I mean what it would bring in the market, if taken out of -the -factory as second-hand ; Mr. Stover is not con-- nected with the .factory now ; can't say when he left ; the value of an engine-lathe depends very much upon the number of inches of swing. The witness was examined as to the value of engine lathes and di'ills, &c., and counsel for the plaintifi'put in evidence eight bills made out by the Howe Machine Company, for macliines supplied Mr. Marston in February, March, and April, 1862 ; in v/hich four screw lathes, freight and carriage were charged $691 ; one milling machine, carriage and freight, $279; one milling machine, milling jaw and freight, $303; another milling machine, freight and carriage, $279; two milling machines, freight and carriage, $598. TESTIMONY OF PHILIP TILLltCHAST. ' Philip TiLLiNGHAST, sworn. Examined by defendant's counsel: lama commission merchant, of the firm of Hunt, Tillinghast & Co. ; had a conversation with Mr. Opdyke after the fire of July ; i told hini I had a letter from a friend who was making guns for the Government, and had about filled his contract, who would like to deliver some to him ; he replied that he did not want any guns ; that he had no gun contract. TESTIMONY OF WM. C. CHURCHILL. Wm. C. Churchill was sworn and examined by defendant's counsel : In 1845 or 1846 » I first furnished, army blue cloth to the Government ; along to 1858, had contract with the Quartermaster's office in Philadelphia; in 1861 Col. Crossman was Quartermaster; in 1861 1 had a contract with liirn for army-blue and sky-blue cloth ; I made three con- tracts for Mr. Opdyke with the Quartermaster; the first was for 15,000 yards full blue cloth; the second for 65,000 yards do.; the third for 16,000 yards do. ; all about the fall of 1861, or early winter of 1862 ; my brother and Mr. Hitchcock had a contract with the Government for 28,000 blue infantry coats about the same time ; Mr. Opdyke executed it, or parties connected with him ; I think my brother was to have a shilling a coat after they were delivered and paid for by the Government ; I do not know of any other con- tract in which Mr. Opdyke was interested ; I had an interest in this last contract; the claims of Mr. Hitchcock and my brother were assigned to me, and I charged it to Mr. Opdyke, from whom Ihad bought goods, for which I owed him ; it will be turnedupon my debt in settling ; I settled with my brother for 12|- cents a coat. Q. Did you go to Philadelphia to get any clothes turned in or sold to the Quarter- master? A. I do not know that !• went particularly With reference to these goods; I attended to them while there, and urged their passage at the request of the parties who manufactured them, Mr. Carhart and Mr. Smith. Q. Had Mr. Opdyke anything to do with it ? A. As he bought the contract, I sup- posed he had an interest in it ; Opdyke & Co. had the contract, or, rather, the contract was made with Opdyke and Co., but the orders to execute were issued— one to Smith for 16,000 coats, and one to Carhart for 12,000. Q. By an arrangement with whom? A. I suppose with Mr. Opdyke ; I don't know about that. Plaintiffs counsel objects to this inquiry. Defendant's counsel offers to prove that Mr. Opdyke had the contract, that he got other gentlemen to make the goods under it, and then they were taken to Philadelphia and put off there . Admitted. Plaintiff' excepts. Witness — There was an excess of goods — more than the contract called for ; which I went, at Mr. Opdyke 's request, to try and get the Quartermaster to pass. Q. Did you succeed? A. I believe not. . , The cloth under the three contracts I named was delivered at Philadefphia £^nd ac- cepted. I think Carhart and Smith had the written contracts for the coats ; and Opdyke and Company for the cloth ; the contract ifor coats was issued to my brother a^d Mr. Hiitchins. ....gi.x.j Adjourned to 10 o'clock to-morrow. ft - . ^/)C EIGHTH DAY. THURSDAY, DECEMBER 22d, 1864. The cross-examiuation of William C. Churcliill was reserved until after the examina- tioa of Ms brother. TESTIMONY OP SAMUEL CHUECHILL. Samuel Churchill, sworn. Examined by defendant's counsel. I live in this city. Q. State the Government contracts you had, that Mr. Opdyke at any time became -connected with, or had anything to do with? A. In the spriag of 1862 I had a contract with the Government to furnish them 16,000 army coats, made of piece-dyed blue cloth ; jt was made with Quartermaster Grossman, at Philadelphia ; that was the only contract I had in which Mr. Opdyke was conceruel ; when I sold that contract to Mr. Opdyke I, at the same time, negotiated a sale to Mr. Opdyke of the contract which Mr. Hitchcock had for 12,000 coats, of the same kind ; when my brother and I took the contract for 10,000 coats, we designed filling it ourselves ; but my brother communicated to me that he could not find the goods the contract called for. (Objection to what his brother told him.) Mr. Opdyke had the goods, and we could not buy the goods of Mr. Opdyke at a price that would answer our purpose ; I went to Mr. Opdyke and negotiated the sale of the contract directly to him. Q. Why did you sell your contract to Mr. Opdyke? (Objected to.) There was no allegation in the libel that Mr. Opdyke had all the cloth. Objection sustained. Q. What was the sale and agreement with Mr. Opdyke? A. I simply sold the con- tract, or caused the contract to be assigned to Mr. Opdyke, for which he was to pay me a consideration of one shilling a coat on the 16,000 ; on the other 12i000 coats he was to pay the same price ; I received from Mr. Opdyke a written obligation to pay me ; my brother had an unsettled account with Mr. Opdyke; my brother took the claim from sue, and paid me for my interest. Q. Do you know whether Mr. Opdyke carried out these two contracts with the Go- vernment? A. To the best of ray knowledge and belief, he did, or caused it to be dote ; the contract was filled to the Government ; the deliver was made in Philadelphia; I had nothing to do with the completion of the contract. Q. Do you know about any other contract that Mr. Opdyke had with the Govern- ment? A. No, sir, nothing more than hearsay. Oi-oss-exaniined — Q. You say the cloths to be used for filling these two contracts with the Government could not be found in the market? Did you seek to find them yourself? A. My impression is tliat I did, but not to the extent my brother did; he made the inquiries chiefly ; we abandoned the idea of getting the cloth ; can't say if I inquired of two establishments in New York for the cloths ; Mr. Opdyke had piece-dyed cloths ; I don't know whether I got the information from seeing the goods, or from con- versation with Mr. Opdji'ke; can't say that I had a conversation with Mr. Opdyke about purchasing the goods, or that I asked him to sell them. My brother imformed me that he could negotiate the contract with Mr. Opdyke, but as it was in my name, he wished me to consummate it ; I have had other coi^racts with the Government for clothing ; I did not manufacture the garments myself, out ordered them to be filled by arrange- ment with clothing merchants ; I took contracts, then made arrangements to furnish the cloth to tailors to be made up, and I delivered them in Philadelphia and got paid for them ; I made contracts with others to make them up at so much a garment ; always carried out such contracts by means of sub-contracts with others. Be-direct— Q. Did you carry out the contract you sold to Opdyke in the way you car- ried out the others? A. No. ADDITIONAL TESTIMONY OF WM. C CHURCHILL" Wm. C. Chitrchill, re-called. My brother negotiated the sale of this contract with Mr. Opdyke. Oross-examined — I do not manufacture clothing myself ; have had a good many con- tracts with the Government for clothing; in one contract for 40,000 pairs uniform pants, I joined Mr. Garhart in the contract, for the purpose of making them, and divided profits, after expenses ; in all other contracts I had with Government I sublet, or hired the gar- ments made by contrect. In the contract sold to Opdyke for 28,000 coats, the trans- fers were made to Mr. Carhart and Mr. Smith i no transfer to Mr. Opdyke ; there was a mistake made in making the transfer ; Mr. Opdyke requested me to go to Philadelphia and have the 16,000 coats transferred to Mr. Carhart and the other 12,000 to Smith ; either through my mistake or the mistake of the clerk there, the 16,000 was transferred 68 to Smith, and the 12,000 to Carhart, I don't know who made the excess of 4,000 coats ; I suppose it was Mr. Smith; almost all the contracts I had with G-overnment were made with Quartermaster Grossman ; I had one from another Quartermaster ; Mr. Weed did not have anything to do with those contracts, or with my getting them ; I did not know Mr. Weed at that time ; my acquaintance with him has been made since. Q. Did yon know anything about an eifort made to remove Quartermaster-General Meigs, and have Col. Grossman appointed in his place ? (Objected to. Ofiered to show the witness's relations with Mr. Weed.) Admitted. A. No, sir, I never heard anything about it; I knew there was dissatisfaction with Mr. Meigs, but I never heard of any ef- fort to put Col. Grossman in his place ; after we transferred the contract for coats to Mr. Opdyke, I felt we had nothing more to do with it ; I did nothing more ; but when in Philadelphia I urged the goods being passed through. TESTIMONY OF HENRY P. SPAULDING. Henry F. Spaulding, sworn. Examined by defendant's counsel I am a commis- sion merchant, of the firm of Spaulding, Hunt & Co. ; commission merchant, in woolen goods ; have been in the cloth busines 30 years ; am familiar with it; I know Mr. Op- dyke ; in the autumn of 1861 1 sold to Mr. Opdyke a quantity, somewhere about 50,000 yards of doeskins, in the white or grey state, prepared for dyeing, but not dyed ; Mr, Opdyke made a contract in my presence with a man named Scott, of Paterson, N. J., to have them dyed in indigo blue ; they were not dyed indigo blue ; judging from some of the goods I had occasion to look at after they were dyed, they were dyed with a com- position ; there might have been indigo in them, but they were not according to the contract, ; this dye is very inferior to indigo blue ; I judge it was a very bad dye, from the fact that Mr. Opdyke claimed from me a dollar a coat on 4,000 that were rejected I ; don't know why they were rejected ; I guaranteed that the merchandise I sold Mr. Op- dyke was capable of taking a good indigo-blue ; the goods were made up by Garhart & Smith; Mr. Opdyke said the goods were not capable of taking the dye, and that was where the controversy arose between us ; Mr. Opdyke told me 4,000 coats were rejected, andsmade a claim on me for $1 a coat, because they had been rejected and would not pass. Q. Do you know whether thesewere the 4,000 coats that were attempted to be got in Philadelphia. A. I do not. It takes about 2J yards to a coat ; in the condition I sold the cloth it was 85 cts. a yard. Q. Did you pay this claim of $1 a coat to Mr. Opdyke? A. No ; Mr. Opdyke with- held the money that was due to me on the cloth, and I endeavored to do as I gene- rally do in such matters — to get out of it with a compromise ; I consented to adjust it, by allowing $1,700. Oi-oss-examined—Tlie goods I sold to Mr. Opdyke were my own ; I bought them of the manufacturer after having sold them to Mr. Opdyke ; I sold them by sample, and then went to Burlington, Vt., and bought the goods ; did not tell Mr. Opdyke that they were goods consigned to me; the contract I made with him was for 50,000 yards ; I can't say how much I delivered ; the contract to dye the cloth was made with Mr. Scott, in my store ; Mr. Scott said he could dye the goods ; I introduced him to Mr. Opdyke ; Mr. Scott had been a dyer of cotton goods — one of the best cotton dyers ; it was dis- cussed whether he could dye woolens ; I thought he could ; the goods I sold were not de- fective, in my opinion; Mr. Opdyke claimed that they were ; he told me some of the goods were afterwards sent to a Staten Island dyeing establishment, to be dyed over ; I know they were not indigo-dyed by Scott, Because I sent strips to the manufacturer, and they came back to me stripped of color, and nearly in the state in which they were delivered to Mr. Opdyke, which is proof that they were not good indigo-blue; my im- pression is that what was afterward sent to Staten Island was indigo-dyed, but the goods were so bedeveled before that by Scott that they could not be made a good color. Q. Did Mr. Opdyke make the contract with Scott to dye the goods before he told you he would take them? A. Mr. Opdyke told me he would take the goods, provided! he could get them dyed; there were so many transactions of the same nature it was diflScult to get them dyed ; I suggested to Mr. Scott, and he conversed with him. Q. How much did you deduct from your bill in consequence of this alleged imperfec- tion? A. Not a penny ; I deducted $1,700 to avoid a controversy that would lead to law : Mr. Opdyke claimed nearly $10,000 ; I allowed $1,700, because I could not get my money without a loss ; I thought it was kept unjustly ; I take my hand out of the lion's mouth whenever I can. TESTIMONY OF THOMAS SMITH. Thomas Smith, sworn. Examined by counsel for defendant. I am hi the clothing^ business in this city, corner of Canal and Broadway, and in Fulton street ; I formerly n 69 had two stores in Fulton street ; I had a contract for the State of New York for making 4,000 or 5,000 soldiers' garments, in conjunction with George Opdyke & Co.; I think Op- dyke got the contract — lam not positive — from Governor Morgan; it was for 2,000 overcoats, 1,000 jackets, and 1,000 pantaloons; the coats and pants were to be light blue, and the jackets dark blue; I thought I could do better by dividing profits with Op- dyke & Co., rather than buying the goods from them, if I got them at cost; our agree- ment was to divide the profits ; they furnished the goods and trimming at cost; the ar- rangement was mutually satisfactory, and the goods were made, delivered, and paid for, and I got my portion of the profits ; I also got a contract from Opdyke & Co. to make infantry frock-coats ; I was first oifered 20,000, but it was reduced to 16,000, and I ac- cepted it ; Opdyke was to furnish me the goods at cost and advance all the money to manufacture them that I wanted, giving me credit on the goods, and we were to divide the profits equally ; after I had made some 13,000 I found that instead of getting the contract for 16,000, that was given to Carhart; but I had cut out 1G,000, and I made them up and sent them to Philadelphia; 12,500 were taken and paid for — the others were returned, being in excess of the contract ; I stored them in my loft about two years, and at last sold them to Opdyke in the settlement; I lost on the whole contract between $4,000 and $5,000, on account of the excess and the delay in having them passed ; I do not know what Opdyke did witli the garments left over ; I understood he sold them , he named what he thought he could get for them — $2.50 I think ; the Government price was $6.87^; the cloth came from the warehouse of Spalding; I got a part of it from Opdyke & Co. ; it was piece-dyed doeskin ; my contract called for that; I know nothing about Carhart's contract, except that Opdyke, I think, told me it was on the same terms as mine ; I had better terms with him than Carhart ; at first Opdyke proposed to deliver the cloth to me at a certain price ; I declined ; afterwards he made me a better proposi- tion, by which the price of the goods was reduced ; I was not interested with Opdyke in any contract for sky-blue Kersey pants ; no man takes a Government contract but what he has more or less rejected ; there were some of Carhart's infantry frock coats re- jected on account of rotten pockets; they were afterward repaired and accepted ; they amounted to some thousands odd. Q, Do you know anything about a contract for fiannel blouses? (Objected to, the libel being " shoddy blankets.") Mk. Evarts — The answer sets up in justification " either blankets or clothing." The Co0rt — The evidence must be addressed to the publication as made. I will al- low you to prove any contracts, however. A. I do not know anything about any contract for blousesin which Opdyke was inter- ested; the prices of the garments I have spoken of were: for the jackets, $4.50 ; for the pants, $3.25 to $3.75; for the overcoats, $9-50; In the Philadelphia contract the price was $6.87^, of which 12J cents were to go to W. C. Churchill. Cross-examzned— That was the price for which they were sold to the United States ; it was too low; there was a profit in it for a large contract, which would have paid very handsome; the price charged to tlie State was about fair; I bought a portion of the cloth outside, of others, for the United States garments— the 16,000— but Opdyke furnislied the majority of the goods ; one-third were not the Spalding goods ; I bought on my own credit alone ; some of the garments were injured by delay in inspecting them in Philadelphia; by Churchill's advice, I sent a young man with the goods, and they were put in the arsenal, and when I found I could not get a receipt I went and dis- covered them covered with canvas, and lying in three inches of mud and water ; they said each contractor had to take his turn and come at a particular time according to notice ; so I took them out and hired a room for them, apprising the officer of the facts ; he assured me I should not lose the goods ; a portion of them were taken ; and he would have taken the excess but Capt. Cruser would not accept them because he would not have any more piece-dyed goods; thej' were woith very little, if anything, when they came back i I do not know any clothing manufacturer who would give over a dollar a piece for them in consequence of the injury they had sustained ; infantry frock coats are worth nothing if the Government don't accept them; Opdyke carried out every agree- ment he made with me fair and square. Q. (By Mr. Evarts.) To your satisfaction ? A. No, I cannot say to my satisfaction. Q. You had a difference with him? A. I certainly did. Be-direct — On the State contract we made about 75 cents to $1 on each of the 2,000 coats, 50 to 75 cents a pair on the pants, and the same on the jackets ; on the United States contract in the settlement I gave Opdyke the coats that were left over, and gave him my check for $4,550, being that amount out of pocket; the diflBculty was about the settlement ; what Opdyke lost I do not know. TESTIMONY OF SETH C. KEYES. . Seth C. Ketes, sworn. Examined by counsel for defendant— In 1861-2 I was inspect- or of clothing, blankets, and army equipage for the United States, in the office of Col. <^ to Vinton, the only office in this city ; Opdyke furnished between 50,000 and 60,000 blankets in 1861-2, amounting to from $175,000 to $200,000, which were inspected by me and is- sued to the army. No cross-examination. TESTIMONY OF F. E. BACON. Frederick E. Bacon, sworn. Examined by, counsel for defendant — I was inspector "f clothing, piece-goods for the United States Government, under Col. Vinton ; there were received from Opdyke abont 20,000 yards of three-fourths dark blue coat cloth, and 50,000 three-fourths dark blue flannel ; the price of the coat cloth was $1.12J, and the flannel about 60 cents per yard. Gross-examined — The goods were passed according to contract made in pursuance to proposals issued by the Government. Be-direct— Some goods were rejected, as is always the case. TESTIMONY OF THOMAS F. CARHART. Thomas F. Cabhart, sworn. Examined by counsel for defendant— In 1862 I was a clothier ; the plaintiff was interested with me and other parties in Government contracts. Witness here exhibited a memorandum of numerous contracts in which the plaintiff was interesied with him, commencing with the 24th of September, 1861, and ending 4tli of May, 1863, amounting in the aggregate to about $4,800,000 ; Opdyke's interest in one portion was one-half the profits, in another one-sixth, and in anoither one-third ; and the contracts were procured in the witness's name. Opdyke going security for perform- ance ; Opdyke's share of the profits on the whole was $172,000. List of Contracts for Clothing made and filled by Thomas F. Garhart, in which George Opdyke & Co. had an interest. WITH THE UNITED STATES GOVERNMENT. L861. Quantity — Article. Price. Total. Sept. 26.. 30,000 Cavalry jackets $6 12>^ $103,750 " 24. . 30,000 Infantry frocks 6 87>^ 206,250 Nov. 4.. 3,000 Overcoats 7 00 21,000 '• 22.. 5,000 Cavalry overcoats..... , 8 50 42,500 " 22.. 16,000 Frocks 6 87>^ 110,000 Dec. 11.. 36,000 Frocks 6 87>^ 247,500 ' 21.. 25 ,000 Frocks 7 00 175,000 " 27.. 50,000 Frocks 7 00 360,000 .'. 3,400 Yards green cloth 2 75 9,350 ..25,000 Knit drawers 91% 22,916 .. 9,000 Canton flannel drawers 67 6,030 ..25 000 Blue flannel drawers 1 11 27,750 .. 9,000 Blouses 2 91 164,600 ..50,000 Blouses 2 45 122,500 . . 50,000 Blouses 3 02 151,000 ..50,000 Infantry trowsers 3 60 180,000 ..75,000 Infantry frocks 7 00 525,000 ..40,000 Blouses 3 02 120,800 ..30,000 Oveicoats 9 75 292,000 . . 6,400 Overcoats 9 75 62,400 .. 8,500 Overcoats. 9 90 85,140 .. 5,000 Overcoats -. ; 9 00 45,000 ..20,000 Cavalry trow-sers. 4 70 94,000 ..10,000 Infantry trowsers 3 70 37,000 . . 15,000 Infantry frocks 7 00 105,000 ..30.000 Infantry overcoats 9 75 292,500 ..10J800 Infantry trow.sers 3 40 36,720 ..15,000 Blouses 2 10 42,000 . . 8,000 Frocks 7 37K 59,000 .30,000 Shirts 147 44,100 .. 5,000 Cavalry overcoats 11 75 58,750 ..40,000 Blouses 3 20 128 000 ..100,000 Shirts ..• 1 55 155,000 186.3. Feb. 23.. 10 ,000 Shirts 1 55 16,500 " 23.. 2,500 Cavalry trowsers 4 63 11,550 April 6.-10,000 Blouses ■. 3 12>^ 31,250 " 13.. 25 ,000 Shirts 1 75 43,750 May 4.. 5,000 Blouses ; 2 90 14,500 Total.... .$4,419,606 1863. April 23. July 2S. " 23. a 82. Auff.. 4. 11 29. 11 29. " 29. Sept. 1. " 1. 11 3. 11 19. 11 19. 11 26. Oct. is". 15. 16. 21. 21. 29 Nov. 13. Dec. 11. '< 22. /(I n WITH OTHERS THAN THE (JOVERNMENT. Parties. Quantity. Articles. Price,. Tbtal. SmithBros •. 3,732 Infantry overcoats.. $7 75 $23,923 00 SmithBros 652 Cavalry overcoats 9 75 "" 6,357 00 SmithBros 302 Cavalry overcoats 9 75 2,944 50 Read&Co 4,953 Gray overcoats 7 50 37,147 50 Read & Co 3,088 Blue overcoats 8 80 27,174 40 Eames 20,168 Infantry pants 3 37>^ 68,067 00 20,748 Cavalry pants. . . . ' 4 50 93,366 GO Total • ,. $4,683,585 4$ Amount of liet profits paid by Thomas F. Carhart to George Opdyke & Co., on the above contracts. $172,359 55 Cross-examined — The contracts ■were all fair, and were fully and faithfully executed ; Opdyke advanced all the capital ; the last delivery was madcin June, 1863, to complete the contract of May 4, 1863 ; after that Opdyke had no interest in contracts whatever ; we received in pay certificates of indebtedness, vouchers, and some money ; the certi- ficates bore interest for twelve months ; the vouchers bore none ; the vouchers sold in the market from about 92 to 96 ; up to the 25th of March, 1862, we received vouchers alone, und Opdyke had to carry fully a million of dollars ; the contractors got nothing from the Government unless they sold these in market ; after that they got part money and part certificates, and sometimes one-quarter, sometimes one-half money, or for small amounts sometimes all money ; the certificates were always below par, say be- tween 92| and 96 or 97, Q. If they had sold these burdens in the market instead of carrying them, would there have been any profit at all on the contracts, and if so, what? A. I do not think there would have been any at all. Q. Were any of these contracts obtained by Opdyke, or any member of his firm? A. No, sir. Q. Was there any secrecy in the arrangement between you and Opdyke? A. No, sir ; when I bought the goods, I did it generally on his credit, and had the bills sent in- that firm. Q. Were not such arrangements as these, to share the profits, very common ? A. Yes, sir. Q.' Are there not eminent firms in New York engaged in that practice ? (Objected to and excluded.) JRe-dired— The last settlement with the Government, I think, was on the 18th of Au- gust, 1863, but the mass had been closed before ; I conducted all the purchases ; as mall portion were with my own money ; it was known that Opdyke was interested ; there was no publication of the fact, except in buying and selling the gouds ; the sellers knew that he participated in the profits ; I told them ; I presume they did not know the shares ; most of the purchasers were at 30 days ; some at 60 and 90, and some cash ; I got most of the contracts myself, at New York, Philadelphia, and Cincinnati, of the quartermas- ters — none at VVashington ; Opdyke gave his security in all cases ; it was not required that the security should be other than a party interested, only that no member of Con- gress should be admitted; all the expenses, interest, &c., that Opdyke had charged, went in before the profits were ascertained ; I believe Opdyke did obtain the contract for 16,000 infantry frock-coats ; we received from 7-30s in payment, which were sold be- low par ; that was the only case in which the securities were sacrificed by Opdyke ; I had very little to do with the financial part ; when I wanted money I went there and got it ; we had a controversy about the 7-30s ; I insisted upon their being sold ; I think they brought about 99|, and the quarter was charged into the account — properly so ; I pre- sume the certificates were not sold above par, they were not convertible. Re-cross — We did not sacrifice the securities ; the contract I got of Opdyke was the Churchill contract ; I paid about one-fifth of the cost for the making up ; we kr.d large facilities for making clothing ; our establishment is over the American Express Company in Hudson street. . ' ' TESTIMONY OF WM. B.COGSWELL. Wm. B. Cogswell, sworn. Examined by counsel for defendant — I have been engaged about 11 years as a machinist ; the depreciation in gun machinery in use from early in 1862 to July, 1863, would be from 50 to 60 per cent ; the number of tool-makers required for 150 men, after being first finished, would be three or four. Gross-examined — I am now master machinist at the Navy Yard, and superintend re- pairs and construction; I never made or used gun machinery; I know considerable about it ; my estimate of the depreciation is based upon its being sold in the market, and not the value of it to the men using it. t2 TESTIMONY OF CHARLES P. HAUGHIAN. Charles P. Haughian called by defendant— I am a gun-maker ; I have been such all my life, except nine months that I worked in a machine shop ; the depreciation in gun machinery in use from early in 1862, to July, 1863, would be from 50 to 60 per cent ; to keep machinery in repair for 150 men would require a great number of men, probably twenty ; where the factory is supplied with tools it would need seven or eight men, may be more ; I mean small tools and milling machinery, but not engine lathes ; if the busi- ness was conducted by the day, and the proprietors agreed to keep up the tools, it would require twenty-five or thirty men ; business is usally done by piece work ; in that case the men keep up the tools ; if it was conducted in that w.ay in this establishment, it would require about three men to keep the tools up. Cross-examined— U the guns are not made by piece work, it would require from twenty-five to thirty-five men where they turn out fifty guns a day. I never sold any- thing but sejDarate parts of the machinery of an establishment. • TESTIMONY OF WM. THOMPSON. William Thompson, sworn. Examined by defendant's counsel— Am a machinist and tool-maker ; have been since January, 1846 ; I was engaged in this factory prior to the fire in July.; on that day I was in the Armory, within 15 minutes of the time it was set on fire ; I commenced work there in August, the year before ; remained a month ; was away until the following February, then went back, and remained there till the factory was burned f I knew a good deal of the condition of tools and machinery ; in the first place, the tools were got up at the expense of the company, until the job was nearly ready to go on with, and theii it was let by the piece to about ^k different parties ; I took my job on the verbal agreement with Mr. Keene, the superintendant, that I should take the job as it stood, with the tools, I making any additional tools at my own ex- pense, and they furnishing the stock and material ; that was the case with the rest ; it was the way in which the business was conducted,; I have got a book or memoranda of all the parts 1 completed up to the first of July , I first commenced contract for piece work on 13th April, 1863, and coptinued until the fire terminated it ; I have a memoran- dum of what I expected to make the tools for on my job- Q. At what price did you contract for in your work for the parts' for labor and finishing? A. The tip part was 10c. ; trigger part, 20|c. ; trigger 6c.; trigger part or lever-ketch, 4c.; barrel-spring, 3c. ; ketch-spring, IJc". ; here were the actual prices paid me. ADDITIONAL TESTIMONY OF HENRY D. STOVER. feKNRT D. Sto^vtsr; re-called— refers to the light bills put in evidence yesterSay, headed "William W. Marston bought of the Stover Machine Co. ;" these were not the bills paid ; these are merely invoices that we send with goods ; when we come to settle a receipt is given in the receipt book, and a settlement is then made according to the understanding at the commencement of the trade ; sometimes we take oft ten per cent, which would not appear on the invoices ; these were not paid as they are here ; Ave sold and delivered ten milling machines at $275 a piece, which I received pay for ; there were five milling jaws sent at $20 each, four of which were retui-ned and $80 credited. Q. State the aggregate of money you received ? A. $6,656.34. Q. Do you know whether the statement you produced comprehends all the items in these eight bills? A. I do not know ; it contains all I ever sold and got paid for. [Re- tires to compare the bills and his list.] These eight bills are' on my list, but differ in amount ; the eight invoices do not include all we supplied. Cross-exa?mned— The bill of March 22, 1862, 4 screw lathes, $691 was paid; the bill of February 24, 1862. engine lathe, 6 feet bed, &c., $255, was not paid as there ; $230 was paid instead ; bill of April 8, 1862, a milling machine and cartage, $279 was paid ; the cartage was paid as a separate item; the bill of April 19, 1862, was all paid except the jaw. Q. Will you say there was a deduction on any of the articles named in these eight bills, except the 7 feet bed, reduced from $255 to $230 ? A. I cannot ; I would not swear to these at all until 1 went through them ; milling machines can be worked without jaws; it is a usual thing to put jaws in; do not know whether Marston put on other jaws when they returned mine. Q. (By juror). I understand you to say that the cost of njilling machines was $275 ; did that include the cost of delivery at the factory ? A. No sir ; I testified as to what the machines were worth, not the extra cost for freights, &c. Q. Since you were examined, the day before yesterday, did you reflect about my question to you as to your alleged conviction ? Were you sentenced to pay a fine and be imprisoned? A. 1 was not to my knowledge. Q. Do you know Charles B. Sedgwick? A. I do, very well ; I know he gouged me out of $10,000 at the Fort, while another lawyer gouged me out of $25,000. / // cy 13 Q. You got out through Mr. Sedgwick ? A. No, sir. Be-direct.— Q. Tell us what you mean by Mr. Sedgwick getting money out of you while in the Fort ? A. As I stated the other day, I was to Washington to attend to my business, and I got into a difficulty by detecting a fraud in the Boston Navy-Yard and reporting it to the Navy Department ;,il came home from Washington with Mr.fBaker ; he kept me three or four'days, and started to go with me to see an officer at the Navy -yard, as he said ; I had a nice over coat, which now would be worth $125 ; he said he had none, and borrowed mine ; when we got to the Navy-yard, I was put on a tug and sent to the Fort; the nest week Mr. Sedgwick came down to see me ; he said that he had my release in his hands the Saturday before, and that Baker went back and told Captain Fox some very hard stories I had said in regard to him — when I never said one word against him or Secretary Welles in my life — right the reverse of that; that he (Mr. Sedgwick) was seen on Sunday nighi and takeu to Secretary Welles and the release taken away because I had said something about Captain Fox ; and afraid I should en- lighten them in regard to frauds that had taken place, they thought it better to keep me there, where I would be perfectly safe and out of the way ; he said I would be there only a few days— that they wanted to ascertain how much I knew ; John H. Cheever had a power of attorney from me, connected with ijay interest in the Stover Machine Co_. ; Sedgwick went to Mr. Cheever, knowing he had a power of attorney, and collected in all from him $9,000 to pay Government officials to help me to get all right ; D. M.Porter, a lawyer, knowing that I was coming out any way, came to the Fort, for the purpose of getting bonds for my appearance in the Henderson case, and said to me, " I shall have to have about $25,000 to fix these naval orticers, or these officers." I said that looks to me as if it was pretty rough. Said he " I am your coimsel, and have done considerable business for you, and you know I wOl not do an3'thing wrong. Place the money in my hands, and I will expend it if necessaiy, and if not, I will pay it back to you." I said I wanted an agreement to that effect, and took one. In a few days I was released with- out anymore cermony ; and after a few weeks I began to ask Mr. Porter where my money had gone to ; he said he was not prepared to tell me. He said he wanted to give part of it to Mr. Wilson, who was Assistant District^ Attorney at Washington, and had all these matters ; he told another party that he wanted part of it to go Captain Fox in a roundabout way ; he has got my money, and I came to the conclusion that I was put there to be fleeced by some one ; I was kept in the Port five months and four days. ADDITIONAL TESTIMONY OP AINSWORTH BROWN. AiNSWORTH Bbown, re-called — Testified that the list produced by Mr. Stover was an exact transcript from the books of the account of Mr. Marston; that the goods there named were all delivered to Mr. Marston, charged to him and the account settled on that. On cross-examination he said he only kne^ by the books ; could not tell whether the bills shown had been paid, or not, except by the books. Q. Was there a reduction made on any single article of the eight bills produced? A. Not to my knowledge. TESTIMONY OF JAMES HAY. James Hay sworn. Examined by defendant's counsel : Q". You are the gentleman named in connection with the Mariposa matter? A. Yes, sir. Q. There was a sum of 5,000 shares of stock which were purchased by General Fremont at $25 a share, as stated by him. Do you remember that fact ? A. Yes, sir, that was so ; I think it was about October, 1863. Q. Thatwas a portion of the lot of 25,000 shares that had been in the hands of Mr. Ketchum? A. Yes, sir. Q. Who made payment for that 5,000 shares ? A. I did ; I conducted the transaction. Q. Who becam^e owners of the 5,000 shares, and who contributed towards the pay- ment ? Objected to. Defendant proposes to connect Mr. Opdyke with it. Allowed. A. Mr. Ketchum paid me for one-third of it and Mr. Opdyke for one-third. TESTIMONY OP CHARLES H. WARD. Chaeles H. Ward sworn. Examined by defendant's counsel — I am a stock-broker and banker, of the firm of Ward & Co., No. 54 Wall street ; I know the Mariposa stock ; in 1863, the price of that stock in the market varied backward and forward from about 45 to 55 ; sales were made almost daily during the month — not in the stock-Board, but in general sales.'- Cross-examined—I have sold a great deal of it; I am related by marriage toMr. Billings, one of the proprietors, and in the formation of the estate held his power of at- u torney, and participated in the arrangement with his brother 0. C. Billings ; I think the stock was sold in the Board about the middle of October ; previous to that it was sold in the street — not on the regular call of the Board, but was dealt in. Q. What would be the effect on the market of throwing 25,000 shares on it? A. It would have knocked the stock very low — can't say how low — very close to 20 per cent. I think ; the effect of putting a large quantity of any particular stock on the market is to depress it almost immediately very much ; I think to have thrown 25,000 shares of Mari- posa on the market would have depressed it 20 per cent. MAJOR ROBERT TAYLOR INTRODUCED. Major Robekt Tayloe was introduced, and counsel for defendant proposed to prove that in his case there was a totally different mode in which his claim against the city for loss of arms was tried from that of Mr. Opdyke's ; that he presented a claim, and it was presented to the same party (Mr. Blunt); that witnesses were examined and cross-ex- amined upon it ; the claim was cut down, and to this hour is unsettled. The Court ruled out the testimony as irrelevant. Counsel for defendant here rested, reserving the right to examine Mr. Reading, a member of the Committee appointed by the Supervisors' Committee to examine into claims. PLAINTIFF'S CASE IN REBUTTAL. TESTIMONY OP WILLIAM W. MARSTON. William W. Mabston sworn ana examined by plaintiff's counsel— My business is manufacturing arms ; the paper produced is a bill of sale of the property, executed by me to George W. Farlee, dated December 1, 1862 ; it includes machinery, fixtures, tools, &c.; the Inventory mentioned in the bill of sale was taken by parties chosen by Mr. Farlee and myself, William L. Colby of the firm of Hoey & Co., and Mr. Charles Knowl- ton, who was previously connected with the factory ; Iliad been conducting the business of the factory up to that time ; I do not know what has become of the book called Schedule B. [George W. Farlee was called to prove the loss of Schedule B. at time of the fire.] Witness continued: This book produced is a copy of the original Inventory, Sched- ule B ; it was written by my son, and I believe I called off the items from Schedule B ; I know it to be correct ; the machinery mentioned in the Inventory was in the factory at the time I sold it ; I was present a good portion of the time the Inventory was taken ; I think the total amount — the whole — was sold for something like $90,000, or for $91,000 ; that included all that was paid ; there were debts and different things to be paid ; to assist the appraisers in making the Inventory they had the original bills and access to the books and everything ; there must have been four hundred feet of shafting altoge- ther—four lengths ; two lengths were purchased from the Stover Machine Company ; Carpenter & Plass made one length and -part of another, and I think the rest was made in the factory. The bills for the shafting was exhibited to the appraisers ; there were pullies and anchors that were included in the bill of shafting. The stocking machinery in the stocking-room was made in the factory. Mr. Stover offered to make some of it. First I applied to Stover to make a portion of the machinery, and I think he said he would make it for $1,700, and have it completed in five weeks ; at the end of that time I called and he had not commenced it ; a week or two after he said he had given it to a man in Newark ; I looked at it and did not like it ; he then said it would cost $7,000: I told him that differed from what he said before ; he then proposed to do it and charge by day's work ; I concluded to make it myself. Q. What was the value of that stocking machinery in your judgment ? A.I think it was fully worth what I sold it for, any how ; this was a special arm, and requii-ed special machinery ; I was not able to get it ; there never was machinery made to make a similar stock to that before. Q. Do you understand a different thing by tools in a gun factory from tools in a gun shop ? A. Certainly ; we have tools in a factory for making machinery, and have gun tools, too ; we got 15 or 16 lathes of Stover ; there were additions put upon the lathes after they were purchased, which would make a difference in their value ; I think that machinery was put in the Inventory at the price that I paid Stover ; I have no doubt about it ; the eight bills produced from the Stover Machine Company were paid with- out the deduction of one cent ; these bills were sent with the machinery ; the receipts were taken in a book ; milling machines are those on which the parts are cut out to the shape required ; they are of different prices, some small ones $100, some index machines as high as $550, and higher ; the prices Mr. Stover gave did not include carting or set- ting up, but only the price of the article in his shop ; I did not buy any spin >led drills from Mr. Stover except one ; the anvils were not bought of him ; I think I paid 9 or 10 cents for the cast iron, and 16 or 18 for the wrought iron. Q. Do you know what it cost to put up and adjust the counter shafting for the 66 ^ (J 15 macliines put down here? A. I am satisfied it cost more than is charged, which I be- lieve is $1,400 ; the machinery was in good condition when I sold it on December 1,1862 ; if anything, it was in better condition than when I bought it, for after running machinery for a while it takes less power to drive it, and it does not heat up so quick ; I think for use in the factory it was worth somewhat more than ^hen new on that account, and somewhat more on account of the increase in price. Q. Do you know the condition of it at the time of its destruction? A. Not positively ; I was not in the factory for three or four months before it was burned up ; the machin- ery seemed then to be in about as good condition as when I sold it ; I know it was in good condition any new machinery, which certainly could not have been run any but what would improve it, from the time I was in there ; when I was in there last, I ob- served everything going on systematically and in good order ; Mr. Stover was not at the factory very often ; I do not think he was there more than a dozen times ; he might have been there twenty times. Q. How much did Mr. Stover examine the machinery when he came there? A. He used to walk about ; I can't tell how much he examined it. At this point the Court adjourned to 10 o'clock to-morrow. NINTH DAY. FRIDAY, DECEMBER 23d, 1 864. TESTIMONY OF WILLIAM W. MARSTON, CONTINUED. William W. Makston— Examination resumed by plaintiffs counsel. I have seen the inventory which was presented to the city ; a portion of that consists of tools, fixtures, and machinery, $67,000 ; that refers to the purchase from me ; I have compared that In- ventory with the Inventory made by Messrs. Colby and Knowlton, at the time of my sale to Farlee ; I see one or two errors in it, or differences ; in the former 4 punches are mentioned ; in my Inventory three, making a difference of $30 ; in the Inventory to the city there is an omission of a mill mandril for tip, $40 ; and two sets of jnws, $65, which are in ray Inventory ; I find in the Inventory to the city one lathe at $325 ; that was a lathe agreed to be delivered to me, and I claimed it as my property, and got the money for it from the city myself. Q. It was inserted in Mr- Farlee's claim through a mistake ? A. I do not know how it was inserted there ; I explained it to Mr. LJlunt, and Mr. Farlee also explained it. Q. How were the tools, fixtures, and machinery, examined by the appraisers ? A. According to their judgment, with the examination of the books ; they had every facility. Q. Were they worth the price at which they were valued in the Inventory? A. I think they were, and more, too ; I thought at the time they were worth more, and tliat I lost money ; the total amount of the sale by me was $92,135 34 ; that included some stock on hand, tools, machinery and fixtures, rent and coal, and also $16,984 62, debts that were due on stock and machinery ; I have not looked at the Inventory sufficiently to state how much was for machinery, how much for tools, &c., separately. [The witness retired to make a calculation as to how much of the $20,000 was for machineiy, how much for tools, &c.] TESTIMOISTY OF WILLIAM J. COLBY. William J. Colby, sworn and examined by plaintiff's counsel. I am a member of the firm of R. Hoe & Co., Machinists ; we have establishments here, in Boston and Lou: don ; we manufacture the power printing presses ; have been engaged in the business of machinery twenty-five years or more \ we have made a few gun tools; Mr- Knowlton and 1 made the appraisal between Marston and Farlee on the machinery and tools in the armory; it took us about six days; thalrwas in November, 1862; we commenced with the machinery ; we had access to the books, invoices, and the main part of the ma- chinery was made up from these ; we afterward commence I with the small tools spoken of in the Inventory ; they Avere laid out in parcels ; I valued one article, and Mr. Knowl- ton the next in rotation; sometimes we differed as to the value, and then we compro- mised ; we made up the prices of the tools according to our knowledge, not from bills ; we put down the cost on the principal machines at the cost in the bills ; the Inventory was made up in duplicate— one delivered to Marston and one to Farlee ; the tools in a gun factory differ from ordinary machinery quite considerably. Q. Was there, or not, an advance on machinery from 1861 to 1863 ? A. IwiU say there T6 was an advance in the machinery of twenty per cent., from the time we made the Inven- tory (Dec, 1862) up to the time of the fire (July, 1863). Q. Is machinery that has been in use from four to six months hetter or worse ? A. It is better in my opinion ; there is no depreciation at all, but a slight improvement. Cross-examined — This last remark applies to running machinery, such as lathes, pla- ners, shafting, etc.; it does not apply to cutters and files, or to tools, as distinguished from machinery. ^ Q. After machines have been used from four to six months, how is it with the next four or six months? A. After that there is a slight depreciation; how much depends on the care taken of the machinery. Q. How is machinery affected by its use for six months or a year, in respect to its marketable value, for sale to the general purchaser? A. Probably, in that light, it would be twenty or twenty-five per cent, depreciated ; I never made guns ; we made some gun tools in 1861 or 1862. Q. Did you do anything else in putting a price upon machinery (as distinguished from the tools), except to take the prices that had been paid for it? A. Nothing else ; we had no bills for the tools ; I put a price upon them that I thought it would cost to make them ; I had nothing to do with the part of the schedule that comes under the head of accounts; I had nothing to do with valuing the stock on hand; it was only on machinery, tools, and fixtures ; Mr. Knowlton and I examined the stocking room; we made out the valuation of the machinery, etc., there from our own observation ; there were no bills to show ; the building and carpenters' work I had nothing to do with; the putting up and adjusting counter shafting for sixty-five machines, $1,495, we ma^e up ; the machines were put up and taken down again in several instances, and replaced; this item of $1,495 included all that ; we got at the matter by estimation as to what it had cost ; this taking down and re-adjusting did not add to the value of the machinery, but it did to the value of the whole establishment. TESTIMONY OP AUGUSTUS WEISMANN. Augustus Weismann, sworn. Examined by counsel for plaintiff. In 1863 I was one of the Supervisors of New York and a member of the committee on riot claims ; was appointed at the first meeting of the committee ; the legal adviser of the Board was present ; also the, Mayor and all the members ; Mr. Develin stated that he would not be able to be present, but he would send Thomas C. Fields ; Mr. Fields then regularly ap- peared at the meetings of the Committee, and commenced the examination in a very rigid manner ; the claim of Farlee was referred to Mr. Blunt, he having had a gun fac- tory, and having expressed a wish to examine the claim, being better acquainted with the articles ; I was not present during the examination by Blunt, on account ol sick- ness ; at the time Farlee's claim came before the Committee, we had passed the Wake- man claim, and Blunt stated that he was ready to report ; the members were all present, I believe ; a conversation took place at the upper end of the table, which I did not dis- tinctly understand, but I saw the Mayor rise and state that he considered it improper to remain when the claim of Farlee, in which he was interested, was before the Committee for consideration, and he left ; I was at the upper end of the table, and that was the rea- son I did not distinctly hear ; after the Mayor left, the real discussion about the claim commenced ; various propositions were made for the purpose of cutting down the claim, as all other claims had been, and it would be improper to omit this when all the others had been so sharply and strongly treated ; I favored cutting it down five per cent., or a per centage ; Ely made a motion that it should be $199,700, a reduction of about $7,000 ; the Comptroller, I think, concurred, and it met the approval of nearly all the members, and was passed ; it was subsequently passed by the Board, either unanimously, or with ene dissenting voice, which might have been Mr.Purdy's. Gross-examined. I had a long conversation with Blunt about the claim and the testi- mony ; I asked him particularly how he got along Avith such a large claim ; I also receiv- ed information from different workmen, who were examined by Blunt and myself, regarding tools which were lost in the factory ; I never examined the bill thoroughly ; I looked over it and satisfied myself that it was a matter which I did not under- stand. • TESTIMONY OF CHARLES D. BIRDSEY. Chakles D. Birdsey, sworn. Examined by counsel for plaintiff. In 1863 I was employed as one of the examiners of riot claims b}^ the Board of Supervisors ; Reading and Lee were the other examiners ; I was present when the claim of Farlee was brought before the committee for decision ; I stood at the upper part of the room ; Weismann was about the third from me; after the claim of Wakeman had been considered, the claim of Farlee came up, andOpdyke remarked that hcthought it was improper for him to remain in the room, as he was interested in that claim, and left the room ; I did not hear Thomas C. Fields make any suggestion about the Mayor's leaving, nor did I hear /■// n Purdy suggest it ; Purdy expressed himself perfectly satisfied with Blunt's examination and recommendation, he being more familiar with the matter than any other could be ; Comptroller Brennan started after Opdyke to bring him back ; I stood by Brennan atthe time ; just before he left, Opdyke said he did not expect his claim to receive any consid- eration different from what other claims had ; that he would expect to see it treated in the same manner ; that seemed to be with reference to cutting it down ; I did not hear Fields make any protest, and I paid attention to what was said; if he made any, it must have been a side remark to one of the committee. Me. Evabts stated that the remark of Fields was at another meeting, and not the one at which this witness was present. The Court said that he had got the impression that it was at this particular meeting that Field's testimony referred to. Witness — There were several conversations on the committee at several times. Cross-examined. — The session when the Farlee claim was passed occupied about an hour ; I think I was there from the commencement to the close ; it occupied about half an hour after the Mayor went out ; the claim of \Yakeman was acted on first, and that, perhaps, gave rise to the Mayor's remark about the treatment of this claim ; Wakeman's claim probably suggested it ; the Mayor stated that he requested the claim to be very carefully made out, and he did not expect it to be treated with any more consideration than others had been; nothing was said up to the time of his leaving about cutting it down ; I remained, probably, for the purpose of walking up with Wiesmannn ; it was a conversational meeting within the bar near the clerk's table; I was leaning against a post, and I think I heL.rd all the public remarks, and some of the private remarks. TESTIMONY OF RICHARD A. READING. Richard A. Reading, swjorn. Examined b.y counsel for defendant (this is the witness that defendant's counsel reserved when they rested): I am a fire underwriter, and have been so since 1829 ; I was selected by the Supervisors as one of the fire committee ; after the parties were examinel and their witnesses, the claims came to us individually ; my geneia,! course was just to bok over the evidence already taken and the claim, and then I went to the parties, where tVere were accounts, and demand their books, papers, bills, vouchers, and everything necessary to elucidate fce claim; from these I made up an estimate of the loss, and compared with the accoiiijt presented, and either allowed or reduced it; generally they required reduction ; I examined claims of machinery destroy- ed ; Farlee's claim was not referred to us ; I m&^e ng investigation; I looked over it. -, Gross-examii ■- - • ■^gyeno^r"""^'^"^'"''' tons: one-tenth certainly were ; I have i a general knov . . > ■ . - - ^.-_ about a year, a ularly for gun ferred to the t which were re- Ackerman for - a number of cli' claims were bj were all destroyed. TESTIMONY OP ORISON BLUNT. Orison Blunt, sworn. Examined by counsel for plaintiif. For the last year I have been engaged in filling up the armies of the United States with volunteers and substi- tutes for this county ; since 1854 was a member of the Board of Supervisors, with the ex- ception of the years 1S65 and 1856 ; I learned the business of manufacturing guns and pistols in 1832 ; I continued it until the year 1855, under the firm name of Blunt & Sims ; I understood the mode of making guns in every part, and know every machine that is used at this day ; I remember this claim ; it came from the Comptroller ; some claims were first sent to us ; we sent them to the Comptroller, and then they came back to us I never knew Farlee before he presented himself before the committee to testify. Op- dyke never spoke to me either directly or indirectly in any way whatever in regard to the claim, nor Farlee, nor any other person ever spoke to me on the merits of the claim ; when it came up I was desirous that the entire committee should sit and hear it, as it was a large and important one ; the committee discussed the matter at considera- ble length, and came to the conclusion that after they had heard it they would not know much more about it than before, and they said : " You hear it, and report it all to us ;" I objected to doing it in that way, but they afterward insisted upon it, and I consented to hear it ; it was before me from 9 to 12 days ; Farlee was the first witness, Marston the second, and Keene the third; there were many others who testified in other cases, and as the committee were satisfied that the building was destroyed with all the property from those other witnesses, they did not go into that part of the evidence in 18 , . this case ; there were claims for bench tools destroyed in this armory ; think T exam- ined Ackerman at very great length on the destruction of the building ia his own case. Q. Was all that was said by the witnesses written down in this claim? A. Farlee was examined at very great length ; what I considered unimportant in the case was not put down — only what related directly to the case ; I allowed the witness to tell his own story as long as he wished, and then directed the clerk, HutcMngs, to put down such parts as applied to the case ; the rest I considered there was no necessity of putting down ; he put down just what he was told by me ; this was so in regard to every other witness then the testimony was read over to the witness, and he signed and swore to it. Q. Was the explanation full ? A. I do not think that there was one-quarter that Farlee or Keene said that was put down; I questioned Keene very closely and exten- sively to learn whether he had any knowledge of these matters^ and I was satisfied that he understood what he was talking about. Q. What explanations, if any, were given to you about the value and quality of the machinery, tools, and guns? A. The first witness called on that point was Marston ; I examined him at very great length on .every item in the bill that was presented that the company bought of him, and I was satisfied, from the knowledge I had of the busi- ness, that every price that was charged — (Objected to as not responsive. Objection sustained). Witness proceeded : Marston showed me just what every item cost, and said that he had lost a large amount of money by selling these tools to the company — some S20,000 or $30,000, 1 think ; that is, less than they cost him ;, I questioned tim in regard to their condition when he sold them, to find out whether any of them were spoiled, and whether any of them were injured by being badly us'.d. Q. Were the prices fixed such as you judged, from your knowledge , to be proper and reasonable? A. There was no item charged in that bill but what I considered a just, fair and low price for such articles, at that time. Q. State what was your examination of Mr. Keene ? A. I examined Mr. Keene much longer than I did Mr. Marston ; I examined him about the entire factory, as he was well acquainted with the entire factory, sfitd Mr. Marston was rw't, inasmuch as there were other tools put in the factory after Mr. Farlee came an.^ Mr. Marston had sold out; I examined Mr. Keene on every item y:at was purchased if Mr. Marston, in order that he should tell meithe condition of the tiols at the time thsy were purchased of Mr. Marston, —so that I should be satisfied tha^the tools purchased of Mr. Marston, together with the machines^ were in good cordition, and not spoiled by inferior workmen ; I was satisfied that Mr. Keene understood the business thoroughly, and upon these investiga- aons I was sltisfiSd that the prices charged were fair, and that Mr. Keene well under- stood them; from the knowledge I had of the biisiness, I was satisfied that the Com- mittee had the whole story with regard to the worth and cost. Q. State your examination of Mr. Farlee ? A I examined Mr. Farlee very thor- oughly, as regar'i.ed the investroA»v &o'. ; he knew Very little with regard to the ma- chinery ; It;'xami.°d him T^ry closely on the point of investment. • Q. Bid you examine him about his ownership ? A. When Mr. Farlee presented the claim to me it was the first time I ever saw him, and I asked him if it was his ; he said it was ; I asked him if there was any other claim on the concern, and I named Mr. Op- dyke, the Mayor ; he said he did not know of any other claim ; that that was the entire claim ; I told him I had been informed that there was $500,000 dollars invested in that factory, and this claim was only for $207,000 ; that I had a small claim presented for tools ; that if there were any other claims I would like to have them all brought up to- gether and examined at the same time ; he said this was tlie only claim, except there . might be some claim for small tools by mechanics. Q. When you questioned Mr. Farlee about his ownership, did he exhibit to you a a bill of sale? A. He showed me a bill of sale from Mr. Marston to him, and that was the bill of sale I used before the Committee in order to ascei-tain what the goods cost him ; I cannot state whether the paper here produced was the bill of sale ; I made no mark upon it. Q. Do you remember anything being said at the time about any one else being in- terested under him or with him? A. I told him I had understood that Mr. Opdyke owned the concern, and he showed me the bill of sale from Mr. Marston ; I stated to Mr. Farlee that the object of the Committee was, first, to learn who owned the property —the next thing was the property destroyed ; we had already understood, from wit- nesses in other cases, that the property was destroyed, and I did not wish to call any Witnesses to that point ; I stated to him that I wanted him to show what the property was worth. Q. Did you at that time know, or had you heard Mr. Opdyke was interested in the establishment? A. I had heard more than fifty times that Mr. Opdyke had a large gun- factory on the corner of Twenty-second street and Second avenue, and was manufac-, tuTing guns for the government. //t- M Q. Look at the last page of the account, and state whether that part of the account is, in your judgment, justly and properly made up or not? A. The first item is 500 pa- tent Gibb's breech-loading carbines, finished, assembled, and ready to deliver, at $24 7o — $12,350; Mr. Keene was examined on that point and was examined at very great length and not one-eighth part of his testimony on that point was written down ; I was satis- fied his calculation was entirely correct ; I agreed with him. Q. Did you go over the calculations as to all these with him? A. Xo, sir ; he stated that he had made the calculation, and stated how he made the calculation ; I did not go into the calculation with him ; I was satisfied that he understood how to do it just as well as myself, and I was satisfied to take his statement under oath; next item of 600, finished, ready to assemble, at $22 73 , I examined Mr. Keene as to it ; he went into the same calculation, in the same way, and I was satisfied his calculation was entirely cor- rect; the next, of 1,000, all machined, filed and stocked, at $21 50 ; I went into an ex- amination in regard to it, and found that his calculation was entirely correct ; the same as to the next item of 1,000 machined, stocked, and not filed, at $19 Vlh,, and the next two items of 1,000 each; on the item of 1,000 carbines, all forged and" inspected, not matched, at $13 87; I examined Mr. Keene longer than any other ; I arrived at how he made the calculation, and was satisfied that he Avas entirely correct, and that he under, stood wliat he was about; I know every stage of the manufacture of gnus, and every part of the manufacture, and know how to do evei-y part with my own hands ; after I' had taken the evidence dbwn, I was satisfied ; I then called all the committee together ; after getting the committee together, I told them I had a very important case now, which I wished them to consider carefully and understand it, before they made any re- port upon it ; I caused the evidence to be read over; I stated that the evidence which relates to the destruction of the factory had been taken in oth^ cases, and we were all satisfied the building had been destroyed ; I stated that there had been many things said which could not be written down and submitted to the committee ; the case then came up to audit the same ; I recommended the committee to audit the bill at the entire cost, as every article was worth the amount charged at the time it was lost ; the Comp- troller made a motion to reduce, which I opposed. Q. Had it been laid over from the time it was first presented to the committee to an- other day? A. I forget about that. Q. Do you know T hos. C. Fields ? A. I do ; he was sent to assist the committee by the Corporation Counsel ; he attended and said he was desirous of doing anything that might be required, and the committee assigned Mr. Fields to such duties as they thought he could do ; Avhcn he required a furlough the.y always gave it to him. Q. Was that pretty often ? A. Not oftener than tlie Committee would assent to ; Mr. Fields generally asked me what case he should examine, and, as a general thing, I selected the case for him, and I think he did it very well. Q. Do you remember, when this case Game up before the committee, his insisting that it should be examined by Mr. Whitney, an engineer, and have a further examina- tion? A. I never heard Mr. Fields or any man say any such thing ; Mr. Fields said to me, before we finally passed the claim, that if I wished anymore testimony or any more information on the point, he knew some one who was either a superintendent, or for- merly had been, at Springfield ; I stated to Mr. Fields that if the gentleman had been ever in this factory, or had any knowledge of this factory, I sliould be pleased to have his testimonj'' ; but inasmuch as he knew nothing of this factory I did not see that he could give the committee any more information than they had ; that was the only con- versation that ever came up. Q. Did Mr. Fields object to the action of the committee on this claim ? A. I never heard that Mr. Fields objected to the action on this claim or any other claim before the committee ; nor do I think he did. Q. Did he protest and say it was his duty on behalf of the city to suggest certain things in respect to it and that witnesses submitted to be examined on the other side, as all the witnesses examined were, with one exception, either agents or employes of Mr. Farlee?_ A. I have no knowledge of Mr. Fields, or any other person, making any such suggestion to me, or to the committee, or that I ever heard of it before. Q. How happened Mayor Opdyke to be present when this claim was called up ? A. At the appointment of the committee Mr. Purdy moved that the Mayor and Comptroller should be adde^tothe committee ; I opposed that, as they were not a part of the Board of Supervisors ; the motion was withdrawn, and, after the committee organized, a resolu- tion was passed inviting the Mayor and Comptroller to be present, in order that they should understand the evidence, and understand every case, as the Mayor had the power of vetoing and the Comptroller had power to audit it, after the Board of Supervisors passed the claim ; I sent for the Mayor on this particular occasion, under the direction ; of Mr. Purdy ; I sent for him three times on this occasion before he came ; when he came up, Mr. Opdyke said he was interested in it, and would not stay, and hewithdrew immediately ; he was not two minutes about it ; I think he said he should withdraw, and 80 to treat this claim as we (Jlid all others ; after he withdrew the claim was considered, after a great deal of discussion • Comptroller Brennan made a motion to reduce it ; I opposed it ; I said it was fair and just as it was, and ought not to be reduced one dollar ; and that was my course on every claim ; if it was unfair I was ready to reduce it to the last cent ; it was finally reduced ; Mr. Puidy opposed reducing it, and spoke at consider- able length ; he said that if they reduced the claims he could not sign the report. Q. Are you acquainted with the value of machinery ? A. I am with some. Q. Was there any increase in the price of machinery from December 1, 1862, to July 13, 1863? A. My impression is there was a very large increase on all kinds of machinery during that time ; I did not buy a steam engine during tha,t time, but in consequence of the increased price of iron and scarcity of labor, I am perfectly satisfied the cost of mak- ing and setting up was increased. Q. Do you know whether there was a great demand for fire-arms during that time ?, A. I know therejwas, and the supply was very small ; I bought a milling machine at $140, which I sold some months after for $160 ; being in the business, and wanting to buy mil- ling machines, I learned that they had advanced very much. "Cross-examined—The paper produced is the claim of Ackerman for carpenter's ^i tools; I don't think there was any witness examined but himself ; I ceased to be a gun-' maker and dealer of guns in 1855 ; since 1856 I have been in the public service ; Iran for Mayor in the fall of 1863 ; may have been nominated in October- Q. Are you now a member of the bar ? A. (Laughing.) I have not yet received my certificate ; I believe I passed an examination and have been reported upon ; the ma- chine I spoke of as purchasing at $140 and selling at $160, was one I bought in Newark, N- J.; I always bu3' at the lowest market price, for cash ; I sold it to W. J. Sims & Bro., my successors ; they stated that they could not get one at the price, and needed it very much ; the bargain was satisfactory to me. Q. They were in a tight place ? A. No, they were never in a tight place ; I was never in a tight place in my life. (Laughter.) Q. You know all about guns ? A. I know a great deal about guns. C. Do yoii know of any body that knows more about them? A. I think I know as much as any man about a gun ; if there is any man that knows more, I don't know him to-day. Q. Do you remember taking a machine to Washington to show — a sort of field gun, that turned a qrank and raked a whole regiment? A. I remember going with a man to Washington and taking a rotary gun that would rake a whole line when it was all in perfect order ; I exhibited it to the heads of all the various departments : I fired it my- self and split it all to pieces while I was doing it, [laughter.] Mr. Lincoln, Mr. Welles, and I think twenty others were present. Q. Did you split it On purpose ? A. No, sir ; I did not make the gun ; it was made by a merchant, who knew nothing about the gun, and he made the parts of cast iron, instead of steel ; I told him he ought to have known better than to make a gun to shoot out of cast iron, that.was no better than corn-bread, [Laughter.] Whenit was made afterward, under my directions, it never split. x Q. You had a narrow escape ? A. No, sir, there was no danger ; I would undertake to split it every day the same way. Q. It was a safe gun? A. No, sir, because it would not do to fire. Q. Don't you think a gun that will not hurt any one, even whenit bursts, a safe gun? [Laughter.] A. No, sir, it is a very unsafe one if you have the enemy in front of you. Q. Does the testimony taken down, in your judgment, contain all that was material to the claim? A. It does. [Mr. Blunt was inquired of very minutely as to the basis or character of the evidence on which he reports favorably in regard to the several claims in the Inventory. He stated that on Keene's examination, the whole expense of the factory was divided up among the guns, in arriving at the cost. Keene put down the material at so much, the labor so much — the capital invested in tools and machinery so much— rent, and expenses of all kinds.] Q. If the carbines, on that calculation had cost $1,000 a piece, that would have been your rule of allowing the claim against the city? A. If the claim came in in that way, if I had been satisfied there had been that investment niade and that loss, I would have allowed it. Q. You mean to say that the way these special prices were distributed to each class of guns was this — that the cost of the investment was appropriated to each lot, and di- vided among the number of that lot ? A. Together with the expense of the factory — every cost connected with the factory on this first lot of guns ; that was the way it was arrived at ; the tariff paid the patentee was also considered ; I was surprised the claim was so small, because the factoi-y was represented to be so large. Q. When this claim was passing through the Committee, did any one tell you the way it was arrived at was this ; that they took the cost to make the carbine ready to deliver. 81 as fixed by the price the Government were to pay ; then they took the incomplete car- bine, counted how much additional labor it would take to make them complete, and' deducted that from the full price ? A. I have no recollection of any such statement hav-! ing been made by any one before the Committee ; neither do I think any such statement! ever was made by any one. Q. Did you understand that on Mr. Farlee's presentation of his claim, so far as it included what had come from Mr. Marston, it was a mere copy of the Inventory of prices at which he had bought from Marston? A. I do not recollect anything of that kind ; I am under the impression that Mr. Marston stated that although his bill amounted to over $80,000 or $90,000 he was willing to take a certain amount for that — I think something like $67,000 — and the difference was what Mr. Marston stated he had lost. , ^ Q. This item of 29 tool hands for 72 weeks, $17,864— what evidence had yon that thaV $17,864 had been burned up in this factory? A. Mr. Keene stated that they had a large number of men employed in making tools, adjusting machines, &c., for the purpose of making that gun ; upon his statement I was satisfied that he had, and from the know- ledge I had of the business of making these tools. Q. Did you observe that, in this settlement for machinery, the city was paying for every machine and for every tool in this concern, bought of Marston, at the full price the machines and tools were charged at on the 1st December, 1862? A. I was aware that the items charged in this schedule were entirely correct ; I asked both Marston and Keene if all the tools that had been broken were kept up, and they stated they were all kept up and in just as good conditio'n as when purchased. Q. The $67,000 covered tools on the notion that they had been kept rip as good as when purchased ? A. Yes. Q. Look at the $17,000 item for tool hands, and see if that was not the wages of keeping up these tools as good as when they were bought? A. Some of it might have been— how much I don't know ; I considered this a large item, and investigated it to my entire satisfaction. Q. Take the item of partitions, closets, desks, drawers, etc.? A. The first item is for lumber ; I was surprised at so much lumber, and asked if he had it on hand ; I am cei*- tain I asked him on that particular po'int, and asked what th^y were doing with so much lumber ; he said they had the lumber there, and I was satisfied. Q. See if that item does not read, '• lumber for the above, $463" — so that it could not be lumber on hand ? A. Yes, that lumber must have been used up ; but there was an item of lumber on hand. (Examined the list.) I do not see the item of lumber on hand. Q. Were any witnesses examined except such as the claimant brought? A. None to this point except Keene, the claimant's foreman. Q. Who acted as counsel on the part of the city ? A. I heard the evidence and sub- mitted it to the committee ; that was the case with nearly all other claims ; there were witnesses on prior claims who testified to the destruction of this building ; the commit- tee had to be satisfied of that; I did not know whether the witnesses were interested, I did not ask that question of any one ; the committee relied upon me and the statements of the witnesses just as they made them ; the testimony was all read by the clerk before the committee in session on the day they passed upon the claim; the schedule was looked at by each member, but the items were not read through ; I think it took nearly all the afternoon to read it ; the evidence was always read over before the committee, and lam sure it was on this occasion. Q. What did Mr. Purdy say? A. He said he considered the claim just and fair, and he was opposed to reducing it one cent. Q. Did he resign on the day it passed? A. He sent in his resignation on that day, and it was laid on the table. Q. Did you understand he resigned because the $2,000 was struck off? A. Not in an^ way ; he voted on its passage after it was re-coiisidered ; he voted* against it before it was re-considered, and he indorsed it ; my recollection is entirely distinct about this. Q. What books did Farlee present? A. I asked for all the books, and they said that they had been burned ; I think they presented all that had been saved ; the cash book showing the outlay I think was presented ; Farlee held it in his hand, and read from it ; I was satisfied from his statements ; I do not think I looked into it ; he read it himself, and I think he stated that there was his cash amount ; I understood him to testify what he had invested from the book, and I was satisfied from the amount invested in regard to the cost of the guns. Q. When the cash book was produced and the statements aggregated and testified to, was anything said about $28,000 having been received back from the(jovernment of the United States? A. There was not one cent; I asked him distinctly if there had been any money received from the Government, and it was stated that there had not, inas- much as there had been no guns delivered — that ^hey were ready to be delivered, but had not been receipted for. 6 He-direct — [Inventory slio-wn]— Marston presented himself with a book something like this; there was an item of lumber $1,476; I asked him what he was doing with all that lumber ; the item charged in the bill is $463 ; I knew there was a large amount for lum- ber somewhere in the schedule, and this $1,476 is the one I had in my recollection when I read it before under the head of lumber; I never read this schedule over since I passed the report; I was surprised to find so much lumber, and Marston explained it to me to my entire satisfaction; the other lumber is what was worked into closets, draw- ers, partitions, &c., after Marston sold out, as appeai-s here ; I never understood that the claim was made for any other articles, except for some small tools claimed by workmen in the factory; I directed every claim to be advertised in a number of papers of the largest circulation, a number of days, on what particular day it would be heard, and I think this was so advertised. Q. What was the cause of Purdy's resignation ? A. He can tell ; I don't think I ought to tell any private conversation here. i , Q. Had it anything to do with this gun claim ? A. Not in the least ; it was in refer- ence to a loss claimed by a relation of his— a nephew I think. Q. How many separate pieces are there in this gun, and how many sets of toQls are required for each piece ? At a guess I should say there are 25 or 26 pieces, requiring from 4 to 12 tools each; I call the cutting mills tools. Q. Are breakage and waste a part of the cost of production? A. So I always under-i stood, and I have never come across any one who did not so consider it. Q. Accordiag to yOur judgment, would 29 tool hands be required for such a factory as this? A. All the fixtures and many of the machines to do certain work are made in the factory, by the tool hands, and if all the tools were made in the factory it would take a great many more than the number charged to do that work ; it was stated that these men were employed as tool hands ; I believed it and allowed accordingly. (Q, In what order were these riot claims taken up?. A. The committee first took up the small claims, especially of colored people ; after passing some 800 I proposed to drop them and take up the large ones ; then between times we examined the small claims ; some we disposed of in five minutes ; we heard some days as many as forty ; I would hear a man's statement for loss of time about three minutes, let him swear to it, and there was an end to it ; we did not allow such claims. Q. What is the cost of getting up an establishment to manufacture such carbines at the rate of fifty a day ? A. $300,000 or $400,000 would be a moderate investment at this time; I consider the enterprise as a very hazardous one, and if I had an order for 10,000 only for military service I would not go into it any how; it would be impossible to make any money by it with no further orders. Me-cross-examinedr—lt my factory was burned while turning out the second thousand, I should calculate to get every cent I put in, but I would not start with an order for ten. nor twenty, nor 50,000 ; I would have expected an Insurance Company to pay every cent I put into it ; I should expect to lose very heavily at the end of an order for 10,000 ; probably nearer 90 per cent, than of 75 of the first cost would have been sunk ; there were plenty of claims for labor lost in consequence of being thrown out of em- ployment, whch I would hear and reject in the time I am telling you ; there were claims also where men were looking on and were knocked down and robbed of their watches ; we did not think the laborers had lost anything when nothing was burned up ; I think the most urgent claim was that of a boarding-house keeper, and she was shown to have been rich ; breakage and waste make up the cost of putting the articles in the market ; articles fetch more or less than the cost ; I have bought United States muskets often for 60 cents. Be-direct — Q. If you had had a contract for 10,000 carbines, and it was certain that the profit would be $20,000, and the factory burned down after 2,000 were made, would you think you had indemnity at the price of old iron or of the parts on hand ? A. No, sir ; I would not have submitted to it without going through all the courts in the country. Q. If you rejected a claim on such grounds would you expect the city to be sued ? A. I should. Re-cross-examination — Q. Is it a supposable contract to make 10 or 20,000 guns? A. At what price ? [Laughter.] TESTIMONY OP THOMAS 0. ACTON. Thomas C. Acton sworn ; examined by counsel for plaintiff: I am one of the Com- missioners of police, and was such in 1863; Mr. Bergen was the other on the 13th of Jul}'. About noon an order was issued to concentrate the police at the headquarters in Mulberry street, that was after the burning of the buildings in Forty-sixth street, the Provost Marshal's ofSce, and the injury to Superintendent Kennedy ; the Mayor had no power over the police. Gross-examined — I gave orders to send assistance to all places where there were arms or ammunition ; the authority of the Mayor to order out the military was well understood; we had the same power; Opdyke's house wasia Fifth avenue, and we sent a force to protect that, and kept it there several days. Re-direet — I understood the Mayor made a requisition for the military force ; we made a requisition on Monday about noon on General Sandfbrd ; General Harvey Brown first brought tliree companies of United States Regulars ; I did not see General Sand- ford's troops till Thursday ; they were under my orders when the Governor gave orders to tliat eifect ; the Seventh Regiment was coming home and was under General Sand- ford's orders. TESTIMONY OF WM. W. MARSTON CONTINUED. Wm. W. Marston — Direct examination resumed by counsel for plaintiff. — I have looked over the items in the sale for $92,000, and I find that S62,675.91 were for machi- nery and tools ; $4,386.52 for work on the twenty-five model guns, for lumber, hardware, curtains, buildings, carpenter-work, and blacksmith shop (this I did not and do not now count among machinery and tools; $20,206.04 for stock (that does not appear in the printed claim) ; then the note of Brooks which I made over was $2,168 ; then for rent, gas, insurance, and coal, $2,618.65 (this was reduced); the whole amount making $92,135.02, as I have figured it up. Cross-examined — The stock is mixed up in the account ; it was estimated at the price I sold it at; I am satisfied it cost no more ; the stock I could get at, the machinery and tools were consumed; the appraisers put their valuation on the tools; a good part of which I made ; others that I bought were put in at the price paid for ; the 5,000 gun stocks, at 1.3 cents each, were in the factory when I sold out; there were gun barrels there that do not appear in the account; the amount paid to the makers was put down (it was stated approximately amounting to $3,375), the item of work charged on 25 guns, $2,500 came in this way ; there had been a great deal of time consumed in getting the tools read^^ and the time for delivery had passed; Farlee was urgent that someguna should be made for delivery ; I told him if it was necessary to go out of the general routine, it would put things back very much and cost a great deal ; Opdyke said it made no difference what it cost, everything else must stop for that ; the foreman considered that they cost that much in consequence of the delay, and I have no doubt they did ; they were not finished,, though much more was not re t[iired about them ; I question whether they could have been delivered to the Government under the contract; the ma- terial was good, and I think they were perfectly safe to shoot wit'' : tVey would have been serviceable if they had been properly put together, but they weic fussed about a good deal. Q. What did you get your pay in for the establishment? A. Opdyke had advanced to me $67,699.58 ; interest $1,576.43; then I had from McNeil $2,500; then a note of McNeil, which Opdyke discounted or paid, $2,000 ; then my indebtedness was $16,948.62 ; all that made $90,720.63, which was the payment I got ; I was a debtor for all that mo- ney, except the $2,000. Q. What was the condition of the business as respects its value in regard to the mo- ney piit into it? (Objected to — objection overruled). A. I considered that the full value was there. ' Q. What was the profit expected on the manufacture of the 10,000 guns ? (Objected to — objection overruled). A. If there had been no more there would have been a great loss ; I think the equipment was pretty much complete. Q. On the 1st of December, 1862, what number of tool hands would be required up to July to keep up the equipment and tools? (Objected to as new affirmative evidence — objection sustained— exception taken.) Adjourned till Tuesday, December 27, at 10 o'clock. . TENTH DAY. TUESDAY, DECEMBER 27TH, 1864. TESTIMONY OF WILLIAM W. MARSTON CONTINUED. Wm. W. Mabston — Cross-examination resumed by counsel for defendant. — The stock- ing machinery, patterns, &c., amounting to $9,669, were all made in the establishment; there were no invoices of the cost of these ; they would be worth this amount to parties continuing the same manufacture ; the first idea in starting the factory, was to have a great many of the parts made outside ; we soon departed from that plan ; we found it cost six times as much as we had calculated to carry on the concern ; before I sold out, Opdyke expressed himself willing to get out of it at five or ten thousand dollars loss ; the model, or pattern gun, charged $500 dollars, is a necessary thing ; it ismade by hand, 84 and generally costs more than that; it is a standard gun ; Farlee is mistaten in his testi- ■ mony that he was charged $3,000 ; the $67,000 in the bill embraces the same articles that Farlee states in his testimony, before the committee, cost Mm $76,000. (Counsel for plaintiff stated that this was explained by consumption.) Be-direct — I made the bargain to sell out with Opdyke, but I sold to Farlee ; I lost over $10,000 before I sold out; when I left, we were not turning out any guns — the arrangements were not completed. Be-cross — I got exactly what the machinery, tools, &c., cost; if I had gone on and completed the contract, without any further jobs, I should have lost something. TESTIMONY OF JOHN CAMERON. JOHN Camekon, sworn : Examined by counsel for plaintiff. I am Captain of the police ; I comniatided in the Eighteenth Precinct in July, 18G3 ; I sent men to protect this armory ; gentlemen from the armory came and requested me to send policemen ; I did so ; about noon, workmen from other factories complained that they were not pro- tected ; I advised the foreman of this factory to dismiss his men and shut up the facto- ry ; I sent to headquarters for more aid ; at one o'clock a number of men came ; I sent them to the factory, but in the afternoon I was informed that it was impossible to hold the factory; I sent men in disguise to order the men to get out of the factory, and they did withdraw in the rear ; I telegraphed to the central office that it was impossible to hold the factory, and Inspector Carpenter telegi-aphed back to withdraw the men ; and neither Opdyke nor any other one connected with the factory requested such ivith- drawal. Cross-examined — I judged that it was impossible to hold the factory from the num- ber of the crowd ; Sergeant Benedict sent me that word ; Jones told me he could hold it by arming the police, but I saw the mob could get on thereof; the factory was burned about 4J o'clock, soon after the men were withdrawn. TESTIMONY OP CORNS. BURDICK. Corns. Burdick, sworn : Examined by Counsel for plaintiff. — I am Captain of the po- lice ; in 1863 I was sergeant, and had command of the Broadway squad on the 13th of Jnly; I was ordered to the Eighteenth Precinct at 12 o'clock by Inspector Carpenter, to report to Capt. Cameron, with 30 men; Capt. Cameron ordered us to the armory; tho mob came; we armed ourselves with carbines, they attacked, we fired, and I under- stand a man was killed ; after some time Sergeant Buckman brought a communication from Capt. Cameron to withdraw ; he came in disguise ; we withdrew at the rear, going through a very small hole ; at that time it would have been instant death, in my opinion, to have attempted to get away in front ; I went and reported to Capt. Cameron, and then went to my station in Mulberry street. Gross-examined We were there about half an hour before the attack was made ; we had twenty-four rounds of ammunition ; we protected ourselves by firing ; the firing stunned the mob, but they soon rallied in greater force; we were there four or five hours; the mob took the doors and every window below ; they did not enter the first floor ; I don't know whether they entered the basement-; I think we fired but one volley ; there might have been some other shots fired ; I seat word to Capt. Cameron that I could not hold the armory without reinforcements, and he sent back word to withdraw, as he could not get assistance then. TESTIMONY OF FRANCIS J. BANFIELD. ^ Francis J. Banfield, sworn : Examined by counsel for plaintiff. I was sergeant of police in July, 1863 ; I went in citizens' clothes and mingled with the rioters before this armory ; I learned that they determined to make the men quit work, as this was the only establishment in the neighborhood where the men were at work; I went and so reported to the Captain ; he ordered me to notify the parties in charge that thej'had better knock off the workmen ; the foreman said he could hold the building ; finally they knocked off; I should think there were three thousand in the mob; the street was blocked up on Sec- ond avenue ; I saw two men get up on the liquor store adjoining and reach the roof of the factory ; I learned that they intended to fire the place and burn out the policemen for shooting their men ; they also threatened the station-house ; I gave that information to the Captain ; he thought I had better get the men out ; so Buckman and I went dis- guised, and entered by the rear on Twenty-first street; it would have been impossible for policemen to show themselves in the street; our men came in bleeding; it would have been impossible to save the building ; the men withdrew from the building, one at a time, through vacant lots, to the station-house, one every two or three minutes. Cross-examined — I was not in the armory when the volley was fired ; the firing exas- perated the mob ; we sent out men to take the victims to the hospital ; the first time they succeeded ; the second time the mob attacked them ; they were in uniform ; the rioters . said they were going to get arms there. vi- 85 TESTIMONY OF B. E. BUCKMAN. Benjamin E. Bctckman, sworn : Examined by counsel for plaintiflF. I wag sergeant ' of the Eighteenth Precinct in July, 1863 ; about two o'clock I was ordered to repair to the Eighteenth Precinct ; I arrived there about three ; word came that the police could not hold the armory ; I said I would take the risk of going ; Banfield and I went through a private house in citizen's dress ; at first the ladies shut the door on us ; we explained who we were ; I got out to the rear, and attracted the attention of sergeant Burdick ; I thought he was going to shoot me ; he recognized me, and I told them where they could escape ; they went out, one at a time ; there was a solid mob in Second avenue, between Twenty-first and Twenty-second streets; some 1,600 or 2,000 passed -our station-house, armed with clubs, with a chunk of iron apparently on the end. Gross-examined — I did not see the mob enter the armory. W. W. MAESTON RECALLED, WiiJLiAM W. Mabston, recalled by counsel for defendant. (Rough-turned gun-stock submitted.) This is similar to the Gibbs carbine-stock; it costs from six to ten cents to turn the stocks as this is ; ours were simply sawed out, those that were charged fifteen cents. TESTIMONY OF J. L. VOSBURG. John L. Vosburg sworn : Examined by counsel for plaintiff. I was sergeant of police, Eighteenth Precinct, in July, 1863 ; I was at the Station-house about one or two o'clock ; after four o'clock I received an order from tlie central ofSce to withdraw the men ; I think it was impossible to hold the armory, judging from what I heard from citizens. Mr. Field moved for an instant commission to examine the Secretary of the Navy for the purpose of producing a copy of the record of a conviction and sentence of Mr. Sto- ver, a witness in this cause called by the defendant, by a naval court-martial for a crimi- nal offence. The object was to impeach the witness' testimony, Mu. EvAKTS objected, that it was a colateral subject. The Court allowed the order. TESTIMONY OF JAMES MALLETTE. James Mallette sworn : Examined by counsel for plaintiff. I was connected with the city department of the Evening Post, in July, 1863 ; the paper now shown me i^ the New York Herald, of the 14th of July, 1863 . Mr. Field offei-ed the paper in evidence for the purpose of showing that it was known publicly that Mr. Opdyke was interested in this armory. Objected to, and objection overruled. Mr. Field read an editorial, stating that the armory was owned by Mr. Opdyke and his brother-in-law. The Tribune, of July 15, was identified, in which the armory was stated to be Mr. Opdyke's factory. Also the New York Dispatch, of July 1 9, to the same effect* The Evening Post, of August 22, was offered, but excluded, Q. State whether there was published in the Evening Post an article in which the ownership of this claim was stated ? ■Objected to ; objection overruled ; exception taken, Q. Did you ask any information of the plaintiff in regard to the ownership, and if so, when? A. I did so, in August or September, 1863. Q. What information did he give you for publication? (Objected to ; objection over- ruled ; exception taken.) A. He said the claim would amount to something more than $200,000, and it would be presented in the name of Farlee, who had conducted the busi- ness ; that part of the claim belonged to him, as he had furnished the capital, or a large part of it ; he gave me the items ; one article was written by me ; the Evening Post, of September 10, containing the items of the claim, was published in consequence of the information I received; there was one article published previously containing similar in- formation. Mr. Field offered the article in evidence. (Objected to; objection overruled.) The article stated that the claim of Mr. Farlee was about to be presented to the city, though Mr. Opdyke, having furnished the capital, was understood to be concerned in the loss.. The amount of the claim was stated to be $207,000. Six thousand carbines had been stated to have been taken by the mob, but it would be seen that only one thousand were obtained. The machinery and fixtures were stated at $97,000. Cross-examined — I either wrote or revised the previous article ; I got the information from the Mayor at his office ; I got a papist statement at the office, either from the.Mayor or from his son, or from some other person present; I went there because I desired cor- rect information, a,nd I supposed he was in a condition to give it ;. there had been many Etories ; the material part that I recollect distinctly waf what the Major told me- 86 Mr. Emott stated that he had finisheathfeiriterrogaptories for the commissicm to ex- amine the Secretary of the Navy. Mr. EvARTS said he would put in the cross-interrogatories to-day, but could not do so before four o'clock. Counsel for plaintiflf wished to get the record by Friday, TESTIMONY OP GEORGE W. FARLEB. George W. Farlbe, called by counsel for plaintiff.^I am the son-in-law of the plain- tifl", and the person to whom this bill of sale was executed, in December, 1862, from Marston ; previously I had a contract with Marston to make 10,000 carbines ; the contract was obtained June 1, 1862, by Mr. Brooks, of th§ United States Government ; (contract read in evidence ; contract between Brooks and Farlee, dated June 25, 1862, also identi- fied and read in evidence, for the fulfillment of the aforementioned contract) ; there was only one delivery made wUhin the time prescribed, and an extension of the contract was procured from the department (extension order proved and read in evidence, allowing six months, provided the price of the carbines be reduced from $28 to $25) ; there was then a verbal arrangement made between me and Brooks reducing the royalty from $6.50 to $3.50. Q. State the terms of sale to you by Marston. A. He selected each as an appraisei" ; the book now shown contains the appraisment ; the inventory was destroyed ; the $92,000 was paid by canceling notes held against Marston, and Mr. Opdyke's cashing a note of McNeil and assuming certain indebtedness of Marston ; Opdyke, Mr. McNeil and myself became jointly interested ; I took possession and was there every day ; we were several months completing the equipment so as to make guns ; there were a large number employed in making tools; we probably turned out a few guns in May; not until a fevf days before the fire did we turn out fifty a day, which we considered the full capacity ; prior to December/Mr. Finch was book-keeper; after December, Mr. Paret kept them. Q. Did you make any suggestion on the day of the riot that you wanted the armory burned ? A. I did not. Q. Did you hear Opdyke make any suggestion to the Paliee Department that they should leave the armory undefended ? A. 1 did not. Q. Did you do anything in the way of defending the armory ; if so, what? A. I had been at the armory in tlie morning, and reached the City Hall about twelve o'clock ; 1 there learned that the mob up town was large and determined, and it occurred to me that the armory would be in danger ; I saw the Mayor in consultation with Generals Wool and Sandford ; I suggested that our armory was a prominient point of attack, and ■ as we had 500 arms finished, I asked permission to arm the men ; Opdyke said I could do it ; I immediately turned to Gen. Wool, and asked whether he concurred in it ; I heard him say he did ; Opdyke turned to me and said: " Hold the citadel, and shoot down any one who attacks it ;" directly after that I went up to the armory and entered ' it; I found some thirty policemen, and learned that word had been sent to stop our work; I conversed with Paret about it, and we thought we would continue the work; but directly after that, in about fifteen or twenty minutes, I made up my niind it would be prudent to stop ; I did so, and gave directions to have the police armed ; I was in- formed that we had received that morning a quantity of cartridges ; I remained there about an hour; we had had no premeditated attack as yet; I went and mingled with the crowd aboiit half an hour ; I moved down to the corner of Twenty-first street and Second avenue ; while there, the mob, which heretofore was in squads of 25 to 100 or ■ more, became a dense mass, and they moved toward the upper part of the armory ; I saw a man striking the panel of the door, and heard the discharge of a carbine ; the mob then swayed back ; in three or four minutes two men came up and assisted a man across the street ; directly afterward they went and picked up another on the platform ; he was concealed from my view by a fence ; I sauntered along with the crowd ; after this shot was fired, I would not have attempted to enter the building ; before that I had intended to enter it ; finding I could do no good there, I went down to the Mayor's office and reported to the Mayor the facts, but said that there was a large police force there, and no doubt they would hold the building ; the Mayor left, and I remained to hear anything further, feeling that that would be a point to which information would naturally come ; about a quarter past four o'clock Loren Jones came in and said that the police- men had been withdrawn ; presently I met Mr. Paret, who said, " It is all up." Q. How was Loren Jones employed by you? A. He did simple errands; we would give him $50 at a time to buy small articles ; he had no interest in the factory except a contingent one under McNeil, as I understood ; he was not superintendent. Q. How many carbines had then been delivered to the government? A. One thou- sand and fifty-two were delivered and paid for— 550 at $28, and the rest at $24.80 — ^in June ; two were models ; on the 13th of July there were 500 ready to deliver ; I knew them to be inspected. f 8T Q, Wlio directed the sale of the debris? A. It was made under my direction ; Paret took charge of it ; I understood it was at the Comptroller's suggestion. Q. Was there a suit commenced against the city? A. There was, and this claim was Bent to the Comptroller besides. Q. How did you make up the claim? A. The first part consisted of machinery, tools, fixtures and articles on hand, which appeared in Marston's inventory, but wliich did not enter into the composition of the guns ; it amounted to $67,093 ; the charges for ma- chinery were taken from charges in the cash-book ; the charge of $17,000 for tool hands is a matter I had no knowledge of; it was made up by Paret and Keene from their recol- lection of what the men did ; the lumber was got at from the cash-book ; the hardware also ; all our memoranda were destroyed besides the cash-book ; the detailed drawings for which we charged $200, Cost us. We believed, $500 ; there was a reduction on some articles ; I had always an impression that the model gun wtis charged $3,000, until I got Marston's schedule within tlie past three weeks ; I find I was mistaken in my testimony in that particular ; I understood from many gun men that a model gun was very expen- sive, and had heard it rated at $10,000 or $12,000; the carbines were reduced to $25 each ; 1 find from Marston's books that more lumber was used than charged for, and the same in regard to carpenter work ; all the items in Marston's schedule as per bill or in- ventory, I examined myself after the appraisers, and saw the bills, receipts and entries ; I verified all those bills; the claim was made up according to my best judgment and be- lief at the time. Q. Was this an honest account? (Objected to ; objection overruled.) A. I so con- sidered and intended it to be. Q. You had not any dishonest motive? A. No, sir. Q. Do you know of anybody connected with the claim that had any dishonest mo- tive? (Objected to. Objection sustained.) Q. Did you believe it was an honest way of making up the claim for the finished and unfinished carbines, in the way you did ? A. I did so and I do now ; I made it on the principle of taking the price at which the gun had been sold for, and deducting there- from the cost of finishing. Q. During the making up of the claim, did you have any conference withMr. Opdyke, and if so, what was said? A. On two occasions we conferred quite at' length, (Ob- jected to— objection overruled.) Mr. Opdj'ke said we should be exceedingly cautious, and get it below rather than above the actual cost. Q. State now about the evidence given before the Board of Supervisors? A. I first took the stand, and when we came to the guns, I said to Mr. Blunt that the claim repre- sented the Government price less what it cost to finish the guns ; Mr. Blunt said the cost was what he wanted to get at; the testimony was not all taken down by any means; I never used the words " I am the entire owner of the claim ; " what I did say wasTe- sponsive to the question of Mr. Blunt, if I was the owner of the claim ; I said yes ; he then asked me whether there were not other parties in interest; in reply to that I pre- sented my bill of sale, and said the business had been done in my name, and the con- t"acts had been made by me ; and I believed that sufficient evidence of my title ; and it was not pertinent to inquire into special interests that other parties might have ; he said, " That will do ; " I explained to him the cost of the claim ; I knew that our costs and liabilities exceeded the amount of our claim, deducting what we had received from the Government. Q. Have you any means of stating every item of expenditure? A. I have; I have here the checks of Mr. Opdyke, or his firm, for that purpose ; also a list of them, some 200 ; I have an account, made up from the checks and cash book, together with the ad- vances to Marston ; about which I hav-e testified; I know it to be correct [Account offered in evidence, and admitted subsequent to defendant's objection.] Profit and Loss Account of Armory, as it appeared when claim was presented to the Supe7-visors. DR. To amount advanced W. W; Marston, to Decern b«r 1, 18^... ., $68,129 0'2 To 117 days' interest to December 1, 1862 1,576 42 .. .).. :.. .. $69,705 44 To other amounts advanced by Mr. Opdyke for armory; to July.13, 1863,-yj-iiro t>rh r- ' ' including, also, several small payments from that date up to Aug. 14,. r' *^.,{ f.n(y ,' , , 1863 , ., ,.......; '',;"; 128,36861 To interest on the above amounts, fhom December 1, 1862, to October 28, ' '. 1863, averaging 252 days ; 9,705(12 To amount advanced by McNeil .................... $6^25000- Tointerest on same to October 28, 1863. i.... 1,035 93 - — • i 7,285 93 Carriea forward.............. ••>.>g<«<.i)«i£i&ji^t. $^15,065 60 ■■5-N Brotight forward ^hi».*»viv',- $215,065 60 • Add liabilities, viz : E. Remington and Sons' claim, subject to adjustment, and subsequently settled at $4,492.90 5,142 61 Oaim of patentees for tariff on royalty, amounting to $26,332.00, on which $11,308.54 had been paid, subject to adjustment, and sabsequently settled at $5,000 15,023 46 Balance due on McNeil's note to Marston... .."... 1,100 00 Bill of steel. New York Steel Company 100 00 Unadjusted liability on contract with E. Remington & Sons, for barrels, and with P. B. Tyler for cones, subsequently waived Total $236,431 73 ..-■I ' CR. ■ ;.. 1863 — By receipts from all sources, viz : J\ihe 30— By cash from United States Government, on first delivery of carbines $15,379 50 June 30— By 120 days' interest on same to October 28, 1863. 358 84 Sept. 11 — By Cj sh from United States Government, on second delivery of carbines..^'' 12,615 75 Sept. 11— By 47-.'5ays' interest on same to October 28, 1863 115 29 -/-.J' 28,469 38 . fi J.t ■.. JniofjIifJfal...,-.. $207,962 35 Mem. — McNiePs advances, together with the estimated profits, were paid to Hender- son, assignee, on the 28th of Novembet, 1864, amo.unting to $11,252.35. Profit and Loss Account of Armory as it was finally closed. DR. ToamountadvancedW. W-Marston by Mr. Opdyke,to December 1, 1862. . $68,129 02 One hundred and seventeen days' Interest, to December 1 , 1862 1,576 42 $69,705 4* Other amounts advanced by Mr. Opdyke for armory, to July 13,1863, in- cluding also several small payments from that date ip to August 14, 1863 128,368 61 Interest on the above amounts from December 1, 1862, to October 28, 1863, averaging 252 days 9,705 62 Amounts advanced by Mr. McNiel , $6,250 00 Interest on the S9.me to October 28, 1863 1,035 93 I 7,285 93 And liabilities as subsequently settled, viz. : E. Remington & Sons' claim of $5,142.67. Subsequently settled at 4,48290 Claims of patentee for balance due for tariff or royalty on carbines, amount- ing to $15 ,023.46. Subsequently settled at 5 ,000 00 Balance due on McNiel's note to Marston — ^paid him w *. . . 1,110 00 Claim of New York Steel Co. , paid .;. . .-. 100 00 Amount paid Hendrickson, McNiel's assignee, for estimated gross on the , entire enterprise 3,966 42 229,724 92 ■ CR. ■ "' 1863.— By receipts from all sources. June 30 — Cash from United States Government for first delivery of car- bines : ..... $15,379 50 Jane 30 — One hundred and twenty days' interest on same, to October 28, 1863. 358 84 Sept. 11-^Cash from United States Government for second delivery of car- bines 12,615 75 Sept. 11 — Forty -seven days' interest on same, to October 28, 1863 115 29 Cash from County .' 199,700 00 228,169 3S Total ., , , $1,555 54 ' Mem. — The above amount of net loss does not embrace the large sum lost by the de- preciation of the currency while the capital was invested in the armory ; nor does it in- ,clude the $10,000 lost by Mr. Marston. Q. In this account from the debit t'here is deducted the whole amount received from the Government? A. Certainly; always deducted in every calculation. Q. Was Marston's inventory exhibited to the Supervisors ? A. It was ; Mr. Hutoh- ings was there as security ; Mr, Field was in another part of the room examining a case ; Messrs. Purdy and Ely were present ; I recollect Mr. Blunt's calling them up to listen when Keene was examined concerning the various armories of the United States ; Blunt Baid to them: " I would like you to get some idea what it costs to make guns." /-/M 89 Q. After your claim was paid did you have any interview with Brooks, the patentee? if so, state what occurred. (Objected to as haying been ruled out when defendant offered the same evidence.) Mr. Field stated what he expected to prove in regard to the settlement for the royalty. The Court considered it of no consequence. Mb. Evarts thought it admissible, and the Court allowed it. Witness — The first intimation I had about the matter was a note left at my ofiBce, from Brooks, stating that he had called two or three times without finding me in, and he wished me to call at his office and settle his claim ; I went to his office and wished to know what his claim was ; he showed nie a statement claiming $6.50 on 3,500 guns, and $3.50 on 6,500 ; I replied that I thought that was a matter for consideration and negotia- tion, that our claim had been cut down, and it could certainly be for nothing else but guns, because the other matter was perfectly apparent ; and, besides, we really had made no money on the contract; if we had, it would be on the guns which we would have subsequently delivered, of the 10,000; " Well," he says, "you have got it from the Government and the city, and you have got to pay me ; " I left ; two or three days after that he came into my ofiBce to know if I was going to do anything fur ler ; I told him I thought not on that basis, it was not equitable ; I wanted to do what v as right and fair, and asked him if he had not any other proposition ; he said he had no ". ind if we would not settle that way he would sue us; I anticipated a law-suit and report ] to Op- dyke accordingly ; he then asked me to have a meeting at his house ; I had one £.i! ■ ,:ed that evening, and we three were present,; about the same argument was used ; Brooks finally consented to take $10,000 ; Opdyke offered $5,000, and we parted at that; about a week after that Brooks called at my office, feeling pretty good, and said he watited this matter closed up, and said he would take $5000 if I would settle it, and he gave me a release. Q. How much had you paid the patentee altogether ? A. $16,332, including this $5,000. . Q. Was this a good carbine, and was it contemplated to go on with the manufacture after the fulfillment of this contract with the Government ? (Objected to— objection overrulediS Exception taken.) A. We made inquiries in regard to the desirableness of this as a gun for the general trade ; I consulted the best authorities I could find — among others Jjawrence, who makes the Sharp carbines, and got a very high opinion of it from him ; it was our idea, when we bought out Marston, to go on, if we got no further order from the Government, and make the gun for the trade ; we also got a contract with Brooks to control, it. Q. After you bought out Marston, did you buy any milling machine ? A. We did ; we bought milling machines to do the same work which costMarston $275, and they'cost US $3.15. THE DEATH OF MR. NOTES. Mb. Field here arose and said that we had arrived at a stage in the day's proceedings when it was proper he should mention the death of Wm. Curtis Noyes. (3nly last Thurs- day, after tirying a cause in the court above, he came in and listened to this trial. On Sunday morning, while dressing, he was struck with paralysis. He was only conscious for a few hours, just enough to ask the physician what was the matter with him, and ex- pired. After a few further remarks, Mr. Field moved, in token of respect, that the court do now adjourn.^ Mb. Evarts se'conded the motion, and added a few remarks eulogistic of the deceased brother. The Court most heartily responded to all that was said, respecting the merits of Mr. Noyes, and spoke of a remarkable argument that the counsel had made in the Court of Appeals in 1861, on the question of charitable uses, when he (Judge Mason) thought the ■ subject had been entirely exhausted on a prior case. Mr. Noyes, said his Honor, be- came a great lawyer more by assiduous and indefatigable application, than by any un- usual gifts of genius. Adjourned till to-morrow at 10 o'clock. ELEVENTH DAY. WEDNESDAY, DECEMBER 28TH, 1864. TESTIMONY OP GEORGE W. FARLEE CONTINUED. George W. Farlee. — Direct examination resumed.— Mr. Fa-ret kept the cash book produced from 1st February; Mr. French from Ist December to the 1st of February; K* ^ 90 while it Was in the hands of Mr. French, to the best of my knowledge, it contained pay- ments made, by the concern, but did not show the debts vre assumed of Mr. Marston's; it did not show the whole amount of money that went into the concern. Q. A.t the time of the destruction of the gun factory, did you .receive any, and, if so, what notice from Mr. Opdyke, respecting the continuance of his interest in it? A. I spoke to him about continuing the business, and he said he would have no more to do with ma- nufacturing arms. Gross-exammed by defendants counsel. I reside in New Jersey ; have resided there about two years ; am now a practising lawyer ; have been admitted about eight years ; was a lawyer in New Jersey before I came here as a lawyer ; during that time my prac- tice in the profession has been general ; I became connected with Mr. Opdyke's family, by marriage, about six years ago ; am Vice-President of Mariposa Mining Company ; I put no capital into the concern for the manufacture of these guns, and drew nothing out; my compensation was sixty cents a gun, and at the time of the purchase of Mr. Marston, I suggested that as more of my time would be required, I wanted an additional interest, and Mr. Opdyke suggested that I should have, until a further arrangement, at the rate of $2,000 a year salary, besides sixty cents a gun ; I wanted a fixed interest not contin- gent on the manufacture of guns ; I received part of the compensation for the destruc- tion of these guns — $500 ; the sixty cents a gun I was to have came one-half out of McNeil's profits and one-half out of Mr. Opdyke's; Mr. Loren Jones did not put any capital into the concern ; he had no compensation directly out of the concern ; I under- stood he had fifty cents a gun, coming out of McNeil's share ; I generally made the pur- chases for the establishment; Mr. Jones would make some small purchases; we gave him ten dollars or so at a time, and he purchased ; I purchased coal of Mr. Lowber ; I purchased several milling machines^two of a party in Pine street at S350 a piece ; I purchased gun stock of E. S. Wright ; I purchased various other articles of other parties, whose names I cannot now recall. Q. Did you go to Washington about this contract at any time ? A. I went to Wash- ington about another order, previous to this contract, to examine the title of the patent in reference to my interest in that contract, and Mr. Opdyke's interest. Q. Was that a contract in reference to the manufacture of Gibbs' carbines? A. It was. Q. Who did you go there with ? (Objected to. Allowed.) A. Charles McNeil. Q. How did you become acquainted with him? A. Through Mr. Opdyke's introduc- tion ; I do not think I went to Washington at Mr. Opdyke's suggestion ; I went on account of ndy own interest in the matter. Q. What was your interest in respect to that contract? (Objected to, unless it applied to the contract under consideration.) Witness — It was not the same contract; my interest was sixty cents a gun in the manufacture of 20,000 carbines ; Mr. Opdyke's interest was $1.70 per carbine ; the con- tract was for 20,000Gibbs's carbines ; they did not get that contract ; I did not make any application for that contract; Mr. Broolcs told me he did not get it. Q. When did your connection with this contract that was actually made for Gibbs's carbines commence ? A. In New York, after our return from Washington ; this con- tract was made in June, 1862 ; my visit to Washington was made in December, 1861. Q. Between December and June what was going on in respect to contracts with the Government in which you and Mr. Opdyke were concerned? (Objected to as not rela- tive to the contract in question. Excluded. Defendant excepts.) (Check-book handed witness). When do these checks commence ? The first check of Mr. Opdyke's in this concern, is dated December 10, 1861, $25. 50 to my order, to be paid to Brooks as the representative of the patentee, the next in Jan- uary 14, 1862, $12.50. For Mr. Marston to my order : January 4, 1862 $1,500 00 December 2, 1861 2,806 06 March 20, 1862.... 1,000 00 Aprils, 1862 2,000 00 April 11. 1862 1,500 00 April 19, 1862 1,000 00 April 26, 1862 1,000 00 May 3, 1862 ; 1,500 00 May 13. 1862 10,000 00 May 19, 1862 • 1.500 00 May 21, 1862 175 00 May 26, 1862 2,000 00 Junes, 1862 1,500 00 June 9, 1862 390 00 June 11, 1862 1,600 00 Q. You gave the checks, having connection with this business upon which the claim was made against the city ? A. Yes, as representing the purchase money to Mr. Mars- ton. Q. I perceive they are all between December, the time when you first went to Wash- ington, and June, 1862, when you say this contract was made ? A. Yes, sir. 91 Q. What concern did they have with the business? A. I do not suppose they had any concern, except to get the value of the amount we paid Mr. Marston for the premisea we purcl.ased. Q. What connection had you with Marston for the period between December and June ? A. I had a contract with Marston. Q. In which W. Opdyke was interested ? A. Yes, sir ; it was to make 10,000 carbines at $17.50. Q. What contract with the Government was there ? A. Brooks had a contract with the Government for the like number of arms. 9. Then you and Opdyke were interested in the manufacture of Gibbs's carbines for the'Government from December, 1861? A. ¥es, sir; we were not manufacturing. Q. And is not that 10,000 carbines the same 10,000 carbines in respect to which this claim against the city was used? A. The carbines actually manufactured were under a subsequent contract ; the first order was annulled by the Government, as I understood. Q. Were not 550 delivered under this first contract, and paid for at the rate of S28 ? A. 5fo, sir; some were delivered aad paid for; this was money for money loaned to Marston, which was secured on a chattel mortgage on his machinery. Q. Was it not a continuous business, as far as your business with Marston was con- cerned, until the burning up, from December 13, 1861? A. No, sir. Q. Why do tliese checks before June come into the account against the city? A. To indicate the amount of the purchase from Mr. Marston; for these checks Mr. Opdyke held Marston's notes, and the surrender of these formed our part of the consideration of the purchase. Q. And what he paid Marston for the purchase enters into the claim against the city ? A. In arriving at the value of what the things were worth. Q. Take next check? A. June 16, 1862, for S12 50 to Marston ; this and the checks following were on the same advances, same footing, and in the same stream of business, until we bought out Marston in December, 1862; there was a difference in the consideration of advances prior to June ; Mr. Marston wanted further ad- vances ; all the advances were for the manufacture of these guns by Marston ; the difference after June consisted in the reduced price at which Marston agreed to make the guns in consideration of the increased advance ; Mr. Brooks had an order of Dec. 13, 1861 ; which was subsequently annulled ; I don't know how long it lasted ; in April, 1862, Mr. Brooks asked to have the time extended, which was denied, and then the contract of June was made ; that took the place of the other, so far as our advances and Marston were concerned, and our interests. Q. Was the contract of Dec. 13, 1861, the one in respect to which you went to Washington ? A. No, I went to examine the title of the patent in respect to a contract for 20,000 guns in Dec. , 1861 ; there was a contract by Brooks from Gov- ernment to manufacture 10,000 Gibbs's CHrbines ; subsequently Mr. Opdyke and I became interested in that contract ; there was no difference between that contract and the one I went on in respect to, except the number of guns. Q. Did any money pass-between you or Opdyke and Marston, on the transactions of sale ? A. Nothing but this representative of money. Q. Nothing but the extinguishmtnt of Marston's debts, either accruing to Op- dyke or some one else? A. And a note of McNeil's of S2,000, and an additional surrender of Marston's note to McNeil for $2,500. Q. Why did you buy Marston out ? A. The fact that our capatalist, Mr. Op- dyke, had advanced more money than he intended, and he refused to advance any more without being able to control it ; the chattel mortg ige was the only security he had for his advances ; I understood Mr. Marston was worth $25,000. Q. Was any proposition made by Mr. Opdyke to sell out to Mr. Marston? A. It was proposed ; I heard he proposed to sell out, owing to the hazardous nature of the business, and his being entirely unacquainted with it, at a loss of $5,000 to $10,000 ; he did not offer to sell out to me at that loss ; it was in speaking of the general condition of the business ; he said this to me ; the negotiation ended in his bu\i:ig Marston out. Q What was the book subsequently discovered recovered from the fire, and which you'say you have never seen ? A. It was a book which is in the hands of the book-keeper, not discovered until after we made out the claim against the city; it was left at Mr' Opdyke' s office ; I do not know by whom ; never heard the book described ; a suit was brought against the city before the 90 days expired. Q. You say that you made a statement to Mr. Blunt as to the principle on which 92 the claim was made up ; charging the carbine price and deducting what it would cost to finish. Do you find anything of that in the printed testimony ? A. I do not ; there may be words connected -with it ; I have not examined closely ; I think there is nothing ; it was when I was examined as a witness I explained that to Mr, Blunt. . Q. Look at your first deposition : ' ' The arms finished and in different stages of finish, are charged at the prices they cost the Company to make them in that con- dition, taking into consideration the fact that this was the first lot of arms made by me, counting the entire cost of manufacture." Did you say that to Mr. Blunt ? A. I said that substantially ; I don't recollect the language. Q. In your second deposition you say : ' ' The whole amount which I paid Mr. Marston for the articles claimed in the schedule, amounting to $67,693 31, was $76,437 36— which is $9,344 05 more than the amount I claim." Explain how you .paid $9,000 more for those items? A. In the first place I must say that that is not a record of what I said, and so I can't explain it ; it is not a fact that I paid $9,000 more than the amount stated in there. Q. Did you pay any more for those articles ? A. Yes, 25 carbines at $25 — $625 ; that is within the $67,000 ; I don't see any other items on that account on which there is a reduction. Q. Then that $67,000 represents in this claim the price you paid to Marston to a dollar and cent, excepting the 25 carbines put down at $625, for which you paid $2,500 ? A. Yes, sir. Q. You say here that the difference was caused by some articles being charged in the inventory at a lower price, and you gave as an example the model gun which was charged at $500, although you paid $3,000 for it. Did you make such a statement to the committee ? A. I think I did. Q. Did you pay $3,000 for the model gun ? A. No, sir, I did not. Q. How came you to say so then ? A. I had that in my mind as the amount that we had paid for the model gun ; from the discussions which we had as to the appraisement as to the value of the model gun, I had the impression that it was set down in the inventory at $3,000 ; I had the inventory there, but did not refer to it, in regard to that item, because it appeared to be so familiar to my mind ; the in- ventory shows it to be $500. Q. In your short deposition you say, " There; was a large engine turning lathe Hot charged in the schedule, as there was some dispute whether it was sold to Mr. Farlee or was still owned by Mr. Marston." By " schedule" there do you mean the schedule presented to the Board ? A. Yes, sir ; I did not say that ; it is the item of $325 in the schedule, I think ; during the progress of the trial Mr. Marston called my attention to that item and said it should not be in our claim ; I went and told Mr. Blunt I wanted to be examined about that item, and I told him that in consideration of the question of title to that ib should not have been put into the schedule. Q. Was not this deposition read over to you before you signed it ? A. Yes, sir ; it reads, " There was a large engine turning lathe not charged in the schedule ;" it should be as I told Mr. Blunt, that " it should not have charged in the schedule." Q. Did you have it struck out of the schedule ? A. No, I did not ; Mr. Blunt was judge ; I gave the testimony ; I presume Mr. Blunt struck it out ; he did not get the money for it . The witness was cross-examined minutely as to entries on the cash-book, and stated that the cash-book showed everything in the inventory except two items — one of $500 to himself for salary, and $200 claimed by Parret ; it was produced as an authentic book of the outlay in the concern, as far as it went ; it shows from February 1. Q. Was it produced as evidence that the manufacture of the guns had cost the amount claimed from the city by reason of showing the amount expended in the factory. A. As far as it would indicate. Q. Was there any disbursement made by Opdyke or McNeil in this business that did not enter into the claim as it was presented to the city fi-om the time the con- cern began until it was destroyed? A. All the outlays and liabilities entered into my consideration of the cost as presented in the claim. //f 93 Q. Tou said you considered that an honest mode of making the claim ? A. Yes. Q. Before this claim was presented, was any other method of making up the claim on the principle of actual value and enumeration of the things described, attempted ? A. Yes, we tried ; I don' t know that it resulted in anything ; we talked over the matter a great deal, and examined the books, and found difficulty in pre- senting it in that shape. Q. Was there any principle of making up the claim against the city that should cover all the money Mr. Opdyke was out of pocket and nothing else ? A. It was talked about ; not exactly that ; covering all his costs and liabilities on contracts ; not what he was out of pocket, but what the concern was out of pocket ; it was talked about between myself and Mr. Opdyke and Mr. Keene. Q. Come to the claim for carbines, $110,000. You have stated the proper way of presenting the claim for carbines destroyed. Who first suggested that principle of charging Government price, and deducting what it would cost to furnish them ? A. Mr. Loren Jones first suggested it. Q. What was his reason for that way ? A. I recollect no particular reason he gave, except that that was a proper and fair way ; I told him I would consider it ; I had a conversation with Mr. Opdyke in regard to it ; I don't recollect what he/ said, more than his concurrence in the reasonableness and propriety of it_; we both considered there ought to appear up to that time some profit on the guns ; we had put on the Government price, which covered all the profit. Q. Did that strike you as an honest mode of presenting the account ? A. It did, in connection with the fact that the property was destroyed, and no further guns could be turned out of that establishment. Q. Had you ever thought of it before Loren Jones suggested it ? A. I do not think I had. Q . Had Mr. Opdyke ever suggested it before you talked to him about it ? A . I don't think he had. Q. Did Opdyke tell you Loren Jones had talked with him about it ? A.I can't recollect whether he did or not ; he may ; I told him Loren Jones had suggested it. Q. You stated that ' ' Mr. Opdyke said we should be exceedingly cautious to get it below, rather than above the actual cost. ' ' When was it he used that language to you ? A. It was during the progress of making up the claim ; he repeated it on two occasions, and used substantially the same language. Q . When the claim was finished was it shown to Mr. Opdyke ? A. I presume it was before it was sent in ; I recollect his questioning Mr. Keene as to his careful- ness in detail, and Mr. Parret as to his making accurate extracts from the cash book ; Mr. Keene made up the carbine claim at his house ; he got the computation of various parts at his home, and made it in pencil ; I saw the process after Mr. Keene arrived at his conclusion. Q. The carbine claim as you presented it to the city includes the full sum you would have received from the Government at the contract price, less the specific expense to complete the guns, as explained ? A. Yes, sir. Q. On that mode of payment, would not the entire royalty for the whole 7,000 guns have been received, if you had collected the claim as you had presented it ? A. Yes, sir. Q. At the price you claimed would you not have collected royalty on the whole, so that it was due and belonging to the patentee ? A . Yes, sir. Q. If you had collected all the royalty that belonged to him, why did you not pay it to him when he demanded it? A. We did not collect it ; they cut down our claim, that is the only difference. Q. And the cutting down of that claim, you put all of the royalty ? A. Yes, sir. Q. Why did you not give him all the royalty except the $7,000 that had been cut down ? A. For the reason that we stated to him, as it appeared from our own payments and advances, that we would make nothing on the contract, and really any profit we would have made would have been on the balance pf the $10,000, and I thought it was right and fair he should share the loss with us. Q. The result was that he collected $5,000, when his claim was $15,000, if you 94 had collected the whole, and he lost $7,000 on the royalty by that docking? A. Yes, sir; I used as argument in adjusting the naatter, that the city had cut our claim down, and I believed as the claim was presented, the Supervisors must have taken it off the guns, and furthermore it appeared by our accounts that we came out about even, and if any forfeit had been made, it would be on the guns subse- quently to be delivered. i Q. Did you give him to understand that by paying him $5,000 that would make you come out about even. No, sir. Q. You did pay McNeil an item of profit ? A. Yes, sir ; I think about 28th of November last ; it was paid on the principle of Mr. Opdyke and myself conceding all the profits — upon the principle of giving him the profits of the whole concern. Q. How much was allowed as profit of the concern ? A. About $3,900 ; there was a re-examination of the matter by Mr. Opdyke that night, and he found a further. profit of $1,500, by examining the 'jheck-book ; there was a loan by Op- dyke to Brooks construed as an advance on the contract, which Mr. Opdyke thought was a matter between him and Brooks, which should not be counted in the expen- diture. (Witness was cross-examined at length as to the items in the profit and loss ac- counts of Armory, which was published in report.) Witness : That was made up by me ; I believe it is correctly stated ; a similar statement to show profit and loss was made up before the claim was presented to the city ; I do not know where it is ; it corresponded with it substantially. Q. You have set down here "Due to patentee $15,000." Did that item appear in your computation, as made out before you made up your claim ? A. It did not substantially. Q. Your statement shows a profit of $2,400 on the face of the paper. If. you collected from the city the whole claim as preseftted, what would then be the up- shot of your claim ? A. In addition to that statement, there would be the differ- ence between $199,700 and $207,000. Q. Assuming you got $207,000 instead of $199,700, then upon this statement of profit and loss, as it was finally closed, there would have been shown a real pro- fit of about $10,000 ? A. That would appear as we settled. (Counsel went into a comparison with the witness of the two accounts — the one in the claim presented to the city, and the one of yesterday.) Q. Did not the schedule and this statement of outlay on your books include all the outlay that had been expended in making the guns delivered to the Govern- ment as well as those burned up ? A. Including our liabilities ; yes, sir. Q. You have stated all the liabilities and outlays ? A. Yes, sir. Q. Did you not receive, upon the claim upon the city, if it had been paid in full; the outlay that had gone to make the guns for the Government, as well as those that were burned up ? A. I always deducted the amount we received from the Government. Q. Where ? A. In making up my estimate, which was the estimate I had ar- rived, in stating to the Committee what was the cost of the concern ; in the charge against the city there is no charge for guns delivered to the Government. Q. Not in direct terms. But where, in your claim for machinery, tools, labor, and outlay, is there any omission of the entire outlay that the factory had been put to ? A. We had been put to expense in making those guns which had been de- livered, and for which we had received the money. Q. Show me, upon your mode of making up the account, where any disburse- ments of Mr. Opdyke were omitted from the aggregate of your claim ? A. There were two modes presented to Mr. Blunt. Q. Have you not charged the expense of making those very guns delivered to the Government in your claim against the city ? No, sir, I don't think we have. Q. Present me a schedule of disbursements on outlay in the conduct of this business, from the time it commenced until the factory was burned up, that is not included in the claim, as you presented it to the city ? A. I cannot give it. Q. Can you give me a single item of disbursements for this factory, from the beginning to the end, that is not included in this claim against the city ? A. Cer- tainly ; the item of so much for so many guns. 95 Q. It is stated that the cost of making these guns was presented to the Supervi- sors in this claim. Now can you point to any item, any subject, or any sum of dis- hursement for account of this factory, from the time it began to the time it was burned up, that is not included in that sum of $207,000 ? A. I can't point to those items, but I know there were costs which entered into the mani^facture of those guns we delivered to the Government. Q. Can you give me the items of expenditure for material, labor, or machinery, or tools, that are omitted in this claim against the city for carbines that were de- stroyed, and that go to the account of the carbines delivered to the Government ? A. I cannot. Q. How long would it have taken to finish the contract and deliver the 7,000, at the rate the factory was working ? A. I think we delivered fifty a day. Q. Do you know Mr. Weed, the defendant ? A. I have known Mr. Weed by sight ; I was not acquainted with him ; I sent the letter, dated October 21, 1863, published in the Tribune of October 28, 1863, to that paper. (Defendant's counsel offers the letter in evidence. Plaintiff's counsel objects. Offered to show the disposition of the witness. Kuled out. Exception.) Q. Have you taken a particular interest in this matter of a gun claim, from the time it was presented until now ? A. I have taken an interest in it ; my name be- ing connected with it. Q. Are you in your feelings interested on the side of Mr. Opdyke, and hostile to Mr. Weed, in the case ? A. I am not, except so far as justice will appear in the case. Q. Have you written or published anything hostile to Mr. Weed ? (Objected to. Excluded.) Re-direct examination — Q. Did the claim presented to the city include anything hut the property burned in the armory? A. No, sir. Q. Was any expenditure or outlay included that did not enter into the property that was burned in the armory ? A. No, sir. Q. Was there a single cent mentioned to any human being as entering into this property, except what entered into the property burned ? A. No, sir. Q. As to the fact whether there was any charge whatever made to the city for guns delivered to the Governor, you are perfectly certain ? A. I am perfectly certain there was not. The Court adjourned at a little after 1 o'clock, to allow of counsel attending the funeral of Mr. Noyes. TWELFTH DAY. THURSDAY, DECEMBER 29TH, 1864. At the resumption of this case yesterday morning, Mr. Hamilton Harris appear- ed (having come from Albany for the purpose), and stated that he never had heard of the letter from his brother, Hon. Ira Harris, to Opdyke, until he saw it in court ; that it was on his representation to Mr. Blatchford that Mr. Pierrepout had made the statement he did in opening, and he wished to take the blame of that error upon himself. EXAMINATION OF GEORGE W. FARLEE RESUMED. Geokge W. Faeleb. — Re-direct examination resumed — Q. How did you get at the cost of the guns burned in the armory ? A. By subtracting the amount we received from Government from our whole outlay and liabilities. Q. How was the profit obtained, as it finally appeared ? A. Compromising claims which were against us. Q. It appears by the account No. 2 that there is a loss of $1,500, and you paid Hendrickson $3,900 for profits. Explain that discrepancy ? A. There was a check in October for about $1,700 that had not been entered into the account ; it was on an advance to Marston, and was subsequently discovered by the book-keeper ; in regard to the question put yesterday as to my bias agahist Mr. Weed, I would say, 96 I mean that my bias is not so great as to prevent my speaking the truth under oath ; we allowed Hendrickson too much by a mistake ; my interest was dependent on the profits ; my mode of claiming for the carbines did not include any prospec- tive profits ; only the profits made to that time. Re-cross-examination — Can you state any respect in which there would have been more profit on the 7,000 guns, if you had delivered them, than you received from your collection from the city ? A. It would not have given us any more profit ; the claim on the city included the profits that would have been derived on the arms un- finished. Q. You say that your bias is not so great as to prevent your speaking the truth under oath ; do you think that your bias just falls short of that ? A. I think not ; I have no particular hostility against Mr. Weed. Q. Do you think you have a bias that just falls short of your speaking the truth under oath ? A. No, sir. Q. Do you think you are so free from bias as to stand as indifferent as a judge, only to have justice done? A. "Well, a judge might try the case of a kinsman and be just ; I feel a great interest in the success of Mr. Opdyke in the case. Q. Is your bias different this morning from what it was yesterday ? A. No, sir. TESTIMONY OF JOHN PARET, Jk. John Paret, Jr., called by plaintiff's counsel, was sworn, and examined by Mr. Field — I am engaged in the clothing business in the city ; reside in New Jersey ; from January to July, 1863, I was book-keeper at the Armory in Second avenue ; I kept the cash-book produced here from February 1 to the destruction of the factory ; it contains all the cash transactions correctly in that time ; I was at the building on the day of its destruction ; the first attack was in the morning ; the t police were in the main room ; I was in the office alone ; seeing the door would be broken by the mob, I called to the policemen ; a shot was fired ; the ringleader was killed ; that deterred the mob for a while ; they returned again, were again re- pulsed ; when things looked most threatening the police were withdrawn, and Mr. Eeene and I were left alone ; we escaped through the rear of the building ; on my return soon after, found the building on fire ; I looked out of the office to see the mob ; they were on Twenty-first or Twenty-second street and on Second avenue ; it was not possible for md or Mr. Keene to hold that building, or with any force under our command, after the police withdrew ; we had nothing to do with their being withdrawn ; after the fire, I took means to save all I could from the ruins, and disposed of it at public sale ; the proceeds were about $2,600 — the net balance after expenses of $2,200 ; I had no knowledge of any of the books being saved at the* time, except the cash-book ; heard of another book yesterday. I made out the computations for the claim presented to the city ; some portions were made by Mr. Keene, which I went over and saw they were correct ; the price of the guns was got at by taking the contract price, and deducting the estimated cost for completing them ; we took the price of machinery f lom the appraiser's inventory, on the pur- chase from Marston ; it was correct ; the cost of tools and fixtures was got at in the same way ; they were correctly taken ; the 25 carbines were $2,500 ih Mar- ston's inventory, and we reduced it to $625 ; the tools and machinery purchased— the prices were taken from the cash-book, including freight and necessary expenses ; Mr. Keene and myself went over carefully from our memory the number df tool hands we had from 1st of February, and most of them we knew by name, and wrote the names down ; I was satisfied that the average was rather below the actual num- ber, and that the $17,000 was actually less than what was expended for tool hands ; I am now satisfied that it was less ; I was at thefactory everyday, with one or two exceptions ; I did not suppose that Loren Jones had any connection with Opdyke and Farlee whatever ; he made small purchased for the armory from day to day, upon specific orders, $60 at a time ; after that was gone, he would present his vouchers and get $50 more ; he received no salary and had nothing to do with the books ; wjien I left I would lock the books up. Q. _ Was there anything claimed for the guns delivered to the Government in the claim presented for the guns on the last page ? A. No, sir. Q. Were you examined before the Board of Supervisors ; if so state the course '-^f J . 9t of examination ? A. Mr. Blunt examined Farlee and Keene at considerable length — Keene more especially ; I heard Keene explain to Mr. Blunt the way in which the claim was made up ; he had his papers and memorandums with him, showing his calculations and the way in which he arrived at the results ; ^e opened them, or offered to show them to Blunt, and explained to him that the guns were charged at the contract price, less the estimated cost of finishing ; the two schedules now shown me are, according to my best recollection, the papers that Keene showed to Blunt. Q. Have you been over the list of expenditures on account of outlay, and com- pared it with the cash-book from the time you went into the establishment ; if so, is that account correct ? A. I have, for the time that I was there, and the account is perfectly correct, I have checked the items (produces a copy in which the checks are marked). Oross-exam^ied — This list of checks embraces all that was received ft-om Opdyke from the 3d of February, 1863, to the 14th of August,'1863, for the business of the armory ; it was all the money that passed through mj-^ hands that I know of ; it foots up in pencil, $82,123.17 ; my keeping of the Cclsh-book commences Jan. 29 ; all after that is mine; the total footing from the 1st of December, 1862, is $114,350.55 : the figures preceding, $71,117 ; I have no recollection of making, or for what purpose I made them : nor have I any recollection when the figures $185,467 and the $9,786, making a total of $195,253, were made, or for what pur- pose ; I never made any footings, of my own knowledge, to represent the amount of the entire advances, but I made those additions for some purpose of my own, I presume, to satisfy my own mind ; I have no recollection of the time or t he object ; I do not think I showed it to anybody ; I had no recollection of its being on the book until it was shown to me here ; it was made a long while ago, probably soon after the transaction. Q. Was it not made when the claim was before the Board of Supervisors ? A . That I do not recollect ; this cash-book was before them ; I do not know that they saw it at all ; either Farlee or myself took the cash-book there ; we went together ; I was before the board only once besides the time I was examined ; I was there an hour or thereabouts each time ; Farlee and Keene were examined the same day I was ; the cash-book was offered by me to substantiate the claim, and to give an op- portunity to examine it thoroughly and see that all the items were taken from it ; if I had then made this pencil footing I should certainly have recollected it ; it was not made for the purpose of showing to the Supervisors ; the cash-book does not ■ show footings ; to the best of my recollection there was nothing said by Blunt on the subject of what the total outlay was, nor did I state to him the total of these footings ; Blunt took the cash-book and looked it over for a few moments, and compared the items with those on the schedule ; I left Farlee and Keene there, and probably left the cash-book in Farlee's custody (witness shows two or three items in answer to a request of the counsel, corresponding in the cash-book of the schedule ;) when Keene was testifying the clerk took notes, but as a general thing he would turn to Blunt, who told him what to write ; I knew of items purchased of Marston not included in this claim ; a great portion of the expenses on the cash-book are for material, stock, expenses, &c., which you can't find in this claim, except as estimated in the value of the guns ; the schedule claims only for machinery, tools and fixtures ; the materials of the guns are not specified, all the new supplies after December, 1862, are charged here ; few tools were broken or we would have had many more tool men theie ; I am now in the clothing business, in company with Henry Paret ; Wilson Gr. Hunt and George Opdyke are our special partners ; it was established on the 28th of November, 1863 ; I was clerk for Op- dyke before that for nearly two years, in his business as a merchant ; I had been out of Opdyke' s employ when I went into the gun factory ; these papers presented' by Keene in this trial are in my hand-writing ; I know that after I went in there were 29 tool hands ; before that I only know it from seeing the pay-roll ; I paid the men myself and had daily intercourse with them ; the ledger now shown I ne- ver saw till yesterday morning ; I kept it commencing in January, 1863. He-direct — The claim for tools is included in the charge for tool hands ; they were duplicating tools all the time. 1 98 TESTIMONY OF MILES FKENCH. Miles French sworn. Examined by counsel for plaintiff— I was employed as book-keeper in this factory from December 1, 1862, to January 29, 1863 ; I made no entry in this cash-book of any payments by Farlee to the credit of Marston on account of debts he assumed by Marston ; I kept that account on some book or paper, intending when they were all paid to make one general entry in the cash-book ; that book or memorandum I left in the factory among the other papers ; I know there were such payments made by Farlee. Cross-examined — I saw the receipts ; I did not, see him pay any of the debts ; I think I saw one of the checks ; I cannot state the amount ; it was my business to enter payments in the cash-book, if I thought proper ; I was to do as I thought proper ; I do not remember who was Superintendent when I went in ; Knowlton came in soon after I did and stayed as long as I did. . TESTIMONY OF GENERAL CHARLES W. SANFORDl Gen. Charles W. Sanford sworn. Examined by counsel for plaintiff. On the morning of the 13th of July,*1863, on reaching my office about 10 o'clock from Westchester county, where I had been on Sunday, I found a note from Mayor Op- dyke, requesting me to go immediately to his office; I went and -found him and his private secretary there ; he informed me that there was a rery serious riot up town, which in- his opinion required the intervention of the military ; after hearing the information which he had, I concurred with him, butfstated that the military force then at my control was very small ; I -however offered to do all I could ; the Mayor then made a requisition for the military ; I proceeded to collect as many men as I could, and ordered most of them to the Seventh avenue arsenal a few to the Elm street armory ; about 12 o'clock I arrived at the Seventh avenue arsenal, and as soon as I could collect a sufficient force I moved down Broadway and dis- persed all the rioters as we went ; the men were kept busy all that day on the west side of the city till about one o'clock in the morning, when the riot subsided to a great degree ; sometime during the morning of that day I received a requisition from the Police Commissioners to suppress the riot ; everything was done that could be with my force ; the regiments that were absent were telegraphed for, and did not arrive till Wednesday evening ; after they got here the riot was immediately suppressed ; if we had had three regiments at first^he riot woiild never have ex- tended beyond the first day ; indeed, I had suppressed it on the west side of town, only I had not men enough on account of some of my troops having been withdrawn by General Brown, who interfered with General Wool's orders, the riot became more furious than before ; I communicated with the Mayor by messages by Staff officers, but I only saw him after Monday but once at Governor Seymour's quar- ters at the St. Nicholas, and once prior at the office of the Police Commissioners a few minutes ; I could not see what the Mayor cbuld have done that he did not do; we had no efficient troops ; the citizens were undisciplined and could do nothing against large masses, . TESTIMONY OF RUFUS F. ANDREWS. RuFus F. Andrews sworn. Examined by Mr. Emott, counsel for plaintiff. I am a member of the bar ; I liave known the plaintiff intimately since 1859, and had a speaking acquaintance with him some years before ; in 1859 I endeavored to secure his indorsement by the branch of the American party vfith. which I was connected ; I continued -with that party till 1860, when I supported Mr. Lincoln; I first be- came acquainted with Charles McNeil in 1859 ; he was a member of the American party in the convention which indorsed Opdyke ; I was appointed Surveyor of the port of New York in 1861 ; I was a candidate for that position before I had any knowledge of the fact ; during the last week in June I was informed that my name was suggested to settle a difficulty that existed between two branches of the party ; there Imd been from the fourth of March, two candidates, Wakeman and Stanton ; after Lincoln's inauguration I was a candidate for District Attorney for this district ; I did not withdraw ; at Mr. Evart's personal request another gentle- man was appointed [laughter] ; I went to Washington on the 29th of June and re- turned the same day. ;% i 99 Q. What did you learn at that time ? (Objected to.) Counsel for plaintiff offered to show that the witness was informed while at "Washington, upon competent authority, that he was to receive this appointment of Sui'veyor. (Excluded — exception taken.) Q. You went there because of the appointment ? A. I went there because it' ' h!i,d been suggested to me that it would do as well for me to show myself, and I returned on the suggestion that it was not best for me to remain, (laughter) that ii, vould only excite the ire of the two belligerents who were fighting each other and they would turn and fight me. (Laughter). Q. Had anything been said previously to you about your being a candidate ? A. Mr. Barney had informed me that my name was mentioned in "Washington ; he was the first who spoke to me on the subject ; I had spoken to nobody. Q. Was there any announcement in the pu blic prints, and if so when, that you were to receive this appointment ? (Objected to — excluded — exception taken). Q. Did you have an interview with McNeil when this subject was mentioned ; if so state it ? A. The first time I ever had any convetsation with McNeil was on the morning of July 5, when he called at my house, and I think some fifteen or twenty other gentlemen called before I got my breakfast, all wanting positions under the Surveyor of the port. (Laughter). I disposed of them all as fast as I could ; McNeil remained ; he said he saw by the papers that I was appointed, or was to be appointed, Surveyor ; that he was very glad to see that such was the case ; that he and I had belonged formerly to the American party and had acted together in the campaign of 1859, when we supported Opdyke for Mayor ; he said that they had no politicians in the Custom-house; that Barney had no taste for politics, and Dennison had never had anything to do with any political organiza- tion, and he was very glad to see we were to have a politician in the office ; he went on to say that he had an idea of running for Assembly on the Republican ticket, in the Eighteenth Ward ; (he had since run in Queen's County) and that he should want some assistance probably to secure his nomination and carry his election ; he said also that he felt a very great interest in having Opdyke nominated for Mayor at the coming Fall ; my recollection is that I remarked to him at that time that it was very early in the season to talk about run^iing a mayor, and he said he thought it was time to begin an organization, that the Democratic party was divided, and with sufficient patronage from the Custom-house and sufficient support in the way of the usual collections, we would be able to carry Opdyke in if we could get him nominated ; I told him if I received the appointment of surveyor I would endeavor to do whatever I could for the interest of the party, and whatever was usual in the way of collections ; he said he felt very much gratified to hear me speak in that way ; that he did not know but I had some feeling toward Opdyke by reason of his having favored another man's appointment ; I told him I had not the slightest — that Opdyke's relation to me had been most intimate ; I had been in the habit of seeing him almost daily and conversing about matters going on in Washington, and that I had studiously kept from him any knowledge of the fact, till I found it was decided in Washington, that I was a candidate, because any influence on his side of the house, or on the side of Weed, would be fatal to my chances — which seemed to gratify him very much ; then he saiS^ that Williamson felt a very great anxiety to bring about the nomination of Opdyke, and he wished me to meet Williamson, who was then his particular friend, at his place, as he called it, corner of Twenty-third street and Broadway, that evening ; that he would see Williamson and have him there ; I said to him that, after meeting some gentlemen at the Fifth Avenue Hotel that evening, I would call at his place ; I called there about half-past eight or nine o'clock, and found McNeil sitting in the saloon ; I was never there before ; Williamson was not there ; we waited half or three-quarters of an hour for him ; McNeil then said something must have detained him, and wished me, as a personal favor, to call there the next evening ; the next evening I went and found Williamson and McNeil together sitting in the main room ; they asked me into a private room ; it was about nine o'clock ; Williamson con- gratulated me on the good news, as he called it, that I was to be surveyor, and commenced to speak about the circumstances under which I was appointed ; one of them was certainly very liberal in trying to entertain me, for he had a table 100 spread with fine wines and plenty to eat ; I judged from that that they wanted Fomething of me, I did not know exactly what ; I did not pay for the entertain- ment ; Williamson said he understood that mine was an independent appointment for the American party, and that he nor his friends had had nothing to do with it ; he then spoke of the coming campaign, and seemed to be very anxious that Opdyke should he nominated for Mayor, saying that he had always taken very great inttsr- est in his success— -as I knew he had in 1859 — and he wanted to see what could be done in the way of patronage to secure his nomination, and then what could be, done in the way of raising money from the Custom-house to carry his election ; I repeated to him what I had said to McNeil, that it was rather early to talk about that ; I was not aware as yet that Opdyke would consent ; that I had conversed witli him in reference to whetlter he had intended to run, and he had assured me- he had no such intention ; Williamson said he thought him the strongest candidate, and tha.t it was for the interest of the party and all of us that he should be nomi- nated ; he then spoke of Barney's not being a politician, having no taste for politics, and of Dennison, the naval officer, not being familiar with the party or- ganizations of the city ; he said he was very glad I was to have the office ; that we had acted together in politics, and he thought we could do so again ; he said it would be necessarj"- to have some appointments made for each. of the organizations of the several wards, in order to interest the different associations, and wanted me to use my influence to liave that brought about ; I told him my patronage was very light, but so far as I had any influence it should go for the benefit of the party ; he then said it had been customary to raise large amounts from the Custom-house for election purposes, and he thought the heads of the department there would not take hold of the matter with rigor when the time came ; all this was said by Wil- liamson ; McNeil occasionally put in a word ; I told him I should do as the mem- bers of tlie Democratic party had done — raise all the money I could legitimately and reasonably, to carry any election we had ; he said he was not exactly familiar with the percentage of tax they had usually put on, and stated what they had put on in the Tax Commissioner's office, which I thought rather steep, and told him that I had understood that two per cent, on' the salaries was the usual assessment ; he did not state the percentage in his office, but mentioned that one man, Wm. M. Mcln- tyre, was assessed $250, whose salary was $1,000 or $1,500 (laughter) ; he was dis- charged because, as he swore before the legislative committee, he would not pay more (laughter) ; we figured up what the two per cent, would amount to,, and made it from $10,000 to $15,000, dependent upon whether they all paid ; he expressed himself gratified at the view I took of it, as a partisan, and spoke of liis expecting to get all the publishing of the proceedings of the Commoa Council in Ihe Sunda^j Dispatch if Opdylte was elected ; something was said, also again, about McNeil's being a candidate for Assembly ; subsequently he came and told me he hati con- cluded not to run. Q. Was there anything said about Opdyke's supporting you, or ceasing to sup- port any other candidate for Surveyor ? A. There was nothing of that kind said ; Williamson said he had entertained the idea that, by reason of Opdj'ke's having supported Stanton up to the last, I might entertain some unpleasant feeling toward Opdyke, and he was very glad to see that that was not so ; that was the whcde con- versation in which Opdyke's name was mentioned. Q. Was there any agreement on your part to do, or cause anything to be done, if Opdyke should cease to support any one else and support you ? A. No, sir ; on the other hand, his influence would have destroyed my chance, and so would Wood's ; both McNeil and Williamson accepted my appointment as a fixed fact ; not a word was said by either of them expressing a desire that Opdyke should sup- port me, or take any part in the matter ; my relations with Opdyke were more in- timate than those of either of those gentlemen, and I concealed from him all this time the fact of what was going on at Washington, until it was announced in the papers ; I met Opdyke in front of St. Paul's Church, in company with General UUmann and Merwin R. Brewer, just after my return from Washington, and I re- marked to Opdyke that my appointment was decided upon ; he said, " Well, I am. not displeased or gratified — it was not in my power to do anything for you, being committed to another, but the relation between you and me is such that it is en- 'p^ 101 tirely satisfactory;" that was before the interview between Williamson, McNeil, and myself ; I suspected, at the time that McNeil called on me, that he had ob- tained the idea from Opdyke, and had come to seek patronage on that account. Q . Did you ever meet McNeil or Williamson, and express your thanks and ob- ligations to them ? A. Never, they had nothing to do with it ; the only subsequent interview I had with McNeil of anyleogth was about a week after I came into office (which was the 1st of August ; my appointment was made on the 13th of July and confirmed on the 16th) ; he asked me what I was going to do about appointments ; he said he had concluded not to run for Assembly ; I said, " I shall not want any of the appointments talked about, because I can get along without ;" said he, " I un- derstand you are going to make none until the 1st of September ;" said I, No, I am going to wait and see who are the most efficient men, who can run the machine and whom I can spare ;" said he, " look here, there is some money to be made out of this, and if you will let me know a week or two before who you are going to ap- point, I will get $300 a-piece ;" whereupon I denounced his proposition as infam- ous, and there was a considerable row, a number of clerks being present, and the gentleman walked out. Q. Did you have an interview with him in Washington ? A. I never did ; I heard all his testimony ; it is false from beginning to end ; I never met McNeil with Opdyke in Washington ; I have no recollection of ever seeing him there ; since the interview just referred to at my office I have never spoken to McNeil at all ; if he had shown himself in the office he would have been put out quick enough ; I heard Williamson testify ; my relations with him were friendly until with a month or two after I had been in office, when the collector sent down a note to me by .Wil- liamson's brother requesting me to examine him for inspector ; I did so, and found him totally incompetent ; I found his handwriting was such that he could not make out a return, (objected to), and I refused the certificate ; Williamson came to see me within a day or two, and urged me to certify to his brother's competency ; I told him in the discharge of my duty I could not do it ; then he brought in two or three others to try to persuade me to give it, but I refused ; then he left me in very great anger, and from that day to this he has not published one of his papers without some slimy article about me — even in the very midst of this trial. Mb. Evahts here objected to the witness, who was a lawyer, persisting in going on giving incompetent testimony after he had been frequently rebuked. Witness stated that he was not aware of having been rebuked. Q. Did you ever pay, or cause to be paid, to Opdyke any money for anj'thing whatever ? A. I never paid one cent to Opdyke for anything, either in any busi- ness or political transaction, nor ever caused any to be paid, nor ever agreed to. Q. Did you have control either of the appointments or of the appointees in the Custom-House ? A. None except a few, some 28 all told ; the number has since been increased. Q. How many officers are there in all departments of the Custom-House ? About twelve hundred ; they vary from day to day ; the number has been increased since the outbreak of the war. Q. Did Opdyke do anything to procure your appointment ? A. He did not. Q. Or to withdraw his influence from anybody else ? A. Nobody was with- drawn ; the President appointed me independent of both factions, and he knows it as well as anybody. Q. Were you pressed as a candidate of the American party ? A. I can't say who pressed me ; I can -only say that the President informed me that he appointed me exclusively for the American party, on account of their support in 1860 ; it was his own appointment. Q. Did you ever raise any money in' the Surveyor's department? if so, how much ? A.I did ; some two per cent from some $400 or $500. Q. What was done with it? A. It was paid over to the committees ; it was the same assessment that Barney levied at the time he issued his circular. Q. (By a juror.) I think that McNeil testified that he met Andrews, and they walked down together ? A. I never walked down with him ; all his statement about meeting me on the morning after my appointment at Opdyke's is untrce ; nor did I ever thank hirn or Williamson, for anything, for they ha-d* nothing to; diO with the matter. 102 Q. Was the contribution for the Custom House voluntary ? A. Entirely so as I understood it ; I read the circular ; I saw gentlemen paying their assessments and heard no complaint. Q. Did McNeil say in that interview that Williamson had come to hear your promises to raise money in case Opdyke would support you? A. Nothing of the kind. Witness was further interrogated in regard to what McNiel testified to about the offer to raise $10,000 for Opdyke's election, and other things that were said at the interview at the oyster house, the counsel reading from the testimony of McNeil, and denied emphatically all the statements. Cross-examined by Mr. Evarts — In the interviews with McNeil, the general ob- ject of supporting the Union and Republican party was spoken of ; I stated that the sums to be raised in the Custom House would vary from $10,000 to $12,000 or $14,000, depending on those who had paid assessments ; after I went into the office there was money raised for other political objects besides the election of Opdyke ; I can't tell for what other purpose it was raised that fall ; I paid assessment and knew others did for the fall election. Q . Was there any requisition on the clerks of the Custom House that fall, except for Opdyke's election? A. Not in my department ; I do not know how much was raised for Opdyke's election ; I think $7,000 ; but have to depend on what I have heard ; I can't say beyond reading Mr. Barney's testimony and what I heard; I had a conference with Mr. Barney before the money was raised; the party was urgent on us to raise money for the election; Mr. Barney did not like the idea ; I told him I thought it was his duty to do as the Collectors had done ; I understood the usual amount raised was two per cent. ,; I said I thought we ought to raise the usual amount in the Custom House ; that year two per cent, was assessed ; I don't know that that was the usual assess- ment ; the Democratic party have assessed three per cent. ; there was no emergency this fall, and there was an assessment of three per cent. Q. Have you any knowledge of an assessment on the Custom-house previous to this, for a Mayoralty election ? A. I have heard of it, but not being there would not know ; I inquired, and was informed they were usual ; when I was looking for the office I understood there were two candidates pressed by the two wings of the party ; Mr. Wakeman was pressed by the Seward and Weed branch, Mr. Stanton, I understood, was pressed by the Chase or Radical branch of the party ; I understood Mr. Opdyke to belong to the Radical branch ; I was very intimate with Mr. Opdyke before this, and spent evenings at his house frequently ; he urged my appointment for United States District Attorney ; I was urged by the American party ; I also had the support of Mr. Opdyke and Mr. Greeley ; Mr. Opdyke told me Mr. Stanton was his candidate for the Surveyorship, and said he thought he would receive the ap- pointment ; that was before my name was suggested ; Mr. Brewer and Gen. Ull- mann were with me when I met Mr. Opdyke in the street ; Mr. Brewer acted with the American party ; Gen. UUmann was considered a leading man in the American party. Q. What words did you use to Mr. Opdyke when you met him in Broadway ? A. The substance of what I said to htm was, that I was to have this appointment of the Surveyorship of the Port ; he seemed to be pleased about it, and said, " I am satisfied ; it was not in my power to do anything for you. but I am satisfied with the results ;" I understood Weed and Opdyke to be friendly at the time ; at the interview with McNeil and Williamson, 1 did not hear it stated that Mr. Op- dyke desired to be a candidate, but that they desired him to be a candidate ; I knew, from having talked with Mr. Opdyke, that it was not his intention to be a candidate at all for the Mayoralty ; after he was nominated, there was great difficulty to get him to accept. Q. Did you convey the idea to WUliamson that you would do what it was cus- tomary for the Custom-house to do toward Opdyke's election, in case you received the office ? A. I gave these gentlemen to understand that I would give my sup- port to whoever was nominated ; I told them my relations with Mr. Opdyke were friendly ; I stated that if I occupied the position in the Custom-house I should do as was usual to carry on the election ; I understood the object of Williamson and /^/ 103 McNeil was to secure an inside track and control patronage ; if their object was to make any agreement, or put me in tlie position of making any agreement for the support of Mr. Opdyke, they certainly did not declare it to me on that night ; I see a moral wrong in the proposition as they have put it here, and I would not be guilty of it any more than I would cut ofif my right hand ; no such thing ever oc- curred, and I would not be in such a transaction ; Gen. Ullmann was interested in my appointment, just as Mr. Weed is interested in getting men appointed, as & recognition of the party to which he belonged, he was not interested pecuniarily in a cent. Q. Did you go to Washington between the time you have stated you left here on 30th June, and time you went into the office ? " A. Yes, sir ; I arrived at Wash- ington on the 10th of July in company with Gen. Ullmann, Merwin W. Brewer, Dr. Price, then comptroller, and the gentfemen ; it was intimated that the President would like to see some of the Americans in reference to my appointment. Q. Tou went with a view to secure the appointment ? A. I did not ; I con- sidered the appointment was made ; it was merely to gratify the President to show it was satisfactory ; it was suggested by Senator Harris ; these gentlemen went on to show the President such a satisfaction would be entirely satisfactory ; the Presi- dent had not then sent in the name to the Senate. Q. How did you first know Mr. Opdyke was to be a candidate for the Mayoralty that season ? A. I did not know it until after the conventions met ; the American party, with which I was, nominated De Peyster Ogden ; I participated in that con- vention and nomination ; he did not run ; after Mr. Opdyke received the nomina- tion of the Eepublican party, he hesitated* about accepting it for some time ; he said he would not acce])t it unless there was a union of all the elements opposed to the Democratic party ; we went to work to do that ; I had a hand in getting the American party to indorse Mr. Opdyke' s nomination; I did not understand Mr. Opdyke to have any doubt of accepting the nomination after the union was made on his name. Q. Did you understand a question which arose as to whether Mr. Opdyke and the other friends of Mr. Stanton would acquiesce in your appointment? A. I never heard anything of that kind*>.it was an independent appointment entirely, as the President knows. Q. An independent appointment which grew out of the opposition between the two wings ? A. Yes, sir ; he thought if he appointed either, he would oifend the other ; so he would appoint a neutral man, and let them fight the battle out ; that is the way I understood my appointment ; I left the office on the 22d of Septem- ber, 1864 ; Mr. Wakeman succeeded me — the same person who was a candidate of one of the wings of the party before . Q. Have you any feeling of bias as between the parties of this suit ? A. I have ; my bias is in favor of Mr. Opdyke ; I have had a very bitter feeling against Mr, Weed for some time ; it dates from the time that he first attacked me in the news- papers, some months back. Q. Have you a feeling against him in respect to losing your office ? A. I have — not on account of the loss of the office, but on account of the course he took. Q. You think he had something to do with your having that office? A, Yes, sir ; I know he had ; I would be an inhuman being if I did not have a feeling of hostility towards Mr. Weed ; but I would not do him an injustice in my testimony. TESTIMONY OF GEORGE LOCKWOOD. Gbokge Lockwood, called by the plaintiff. I was a partner in the firm of George Opdyke & Co., while it was in existence ; while Mr. Opdyke was Mayor I was act- ing as senior partner, in 1862-3 ; I do not know his exact interest, but it was be- tween thirty and forty per cent. ; 1 remember the garments made by Smith Bros. on the Spaulding cloth ; the loss to ou^: firm on the excess of 4,000 garments was $7,000; the garments returned were ^old at private sale at $2.50, less five per cent. ; there was a defect in the cloth ; we never could get the dyers to make a per- fect thing of it ; they were sent to Scott, a dyer in Paterson ; some portion sent 104 to Staten Island and returned ; we wanted to have Mr. Spaulding take the cloth back ; he refused. Gross-examined — Q. What was the whole amount of Goveriiment contracts you were interested in, directly or otherwise, during 1862—3 ? A. Our contracts with the Government were not to a great extent. Q. What interest had you in the contracts spoken of by Mr. Carhart of $4,700, OOOi A. Our firm had one-third interest, through Mr. Carhart ; I suppose you meant contracts we had directly with the Gove rnment. Q. What other contracts did you have an interest in ? A. We had an interest in contracts with Smith Bros., to the amount of 16,000 infantry coats ; Churchill made a sale of some goods we had for us ; we had no interest with him in any con- tract ; we had a small contract with Colonel Vinton, here, for blankets — none else- where ; I had something to do with executing that. Q. What was the interest of Opdyke & Co. in the Smith contract ? A. One-half the amount of 16,000 coats. Q. Who were partners in the firm of Opdyke & Co. at the time of those Govern- ment contracts? A. Mr. Lurher, Mr. Stroebell, Mr. Stryker, Mr. Gautrill, myself, and Mr. Opdyke ; the firm existed until a year ago last June. TESTIMONY OF SAMUEL B. STEYKER. Samuel B. Stkyker, called for plaintiff, testified : He was a partner in the firm of Opdyke & Co. until June, 1862 ; is now in printing and dying business ; remem- bers goods bought of Spaulding ; about 40,000 yards were delivered ; 5,000 yards were returned to Spaulding, after Scott had hired to dye them indigo blue ; the Staten Island Company had about 28,000 yards to dye ; they dyed them with a good indigo blue ; I saw them before being dyed ; they were spotted, and where the spots were they would not receive a good indigo blue ; I think they could have been dyed black ; they were bought of Spauldmg as perfect goodsi; in cutting up they were obliged to cut round those spots ; some of the goods returned by Scott were dyed over by the Staten Island Company ; some of the spots still showed. Cross-examined — The goods that were spotted did not go into the Government garments ; I saw the spots cut out ; all the goods received by the Government were a good indigo blue ; the Government rejected about 4,000 coats, partly, I be- lieve, on account of the spots ; I do not know the exact reason ; that happened after I left the concern. TESTIMONY OP JAIIES F. YOUNG. James F. Young, called for plaintiff : I am Secretary of Staten Island Dyeing establishments, who dyed about 40,000 yards of the Spaulding cloth spoken of ; they were dyed with a good indigo blue ; did not receive the blue well ; different portions of the piece were different shades when they came out of the dye. TESTIMONY OF WILLIAM RICHARDSON. WiLUAM Richardson, called by plaintiff, sworn : In 1863 I was messenger in the Mayor's office ; was there during the whole time of Mr. Opdyke's mayoralty ; I know Charles McNeil ; recollected his coming to the office after the claim against the city was presented for the armory. Adjourned to 10 o'clock to-morrow. THIRTEENTH DAY. FllIDAT, DECEMBER 30tH, 1S64. t WILLIAM RICHARDSON CALLED. Theplaintiffcalled William Richardson, a messenger in theMayor's office during Mr. Opdyke's term of office, for the purpose of impeaching Charles McNeil, and to prove that McNeil declared to him, while the claim for the armory was pending, / v^' 105 that from his knowledge of Mr. Opdyke, he knew he would not put in a claim that was not perfectly just. Counsel for defendant objected on the ground that it was collateral, and there was no foundation for the evidence. Excluded. ALBERT EOBERTSON CALLED. Albert Robertson was also called to impeach McNeil, and prove that McNeil had borrowed a sum of money of the witness, and on that occasion told him that he had invested $20,000 in the gun factory. Same objection and ruling. EDMUND REQUA CALLED. Edmund Requa was called on the same question, and excluded. TESTIMONY OF JAMES T. BARRETT James T. Barrett, being sworn, tes ified that he was employed as Superinten- dent of the Staten Island Dyeing Establishment ; that establishment dyed nearly 30,000 yards of the Spaulding cloth for Opdyke, with indigo blue ; piece goods axe not susceptible of as good a dye as other goods. TESTIMONY OF MERWIN R. BREWER. Merwin R. Brewer, called by plaintiff and sworn — I reside at No. 133 East Thirty-fourth street ; am a lawyer ; know Mr. Opdyke and Mr. Andrews ; on one occasion when walking with Mr. Andrews, I met Mr. Opdyke in Broadway ; it was on an occasion when the Survpyorship was mentioned ; on the 1st or 2d of July 1861 ; General Ullmann was with us ; there was some conversation. Q. In that conversation was anything said about the office of Surveyor, and if so, what took place 1 (Objected to ; admitted ; exception.) A. We were walk- ing up Broadway, and met Mr. Opdyke coming down ; Mr. Andrews bowed, and they stopped ; Mr. Andrews said, " I am to be the next Surveyor of the port of New York ;" Mr. Opdyke said, " Well, I am satisfied," or words to that effect ; he then went on to say that he felt hiniself under obligations to Mr. Andrews ; that hewa- satisfied his man (Mr. Stanton) could not be appointed, and in that event he would rather see Mr. Andrews appointed than any one else ; there the interview ended ; on the 9th of July I went to Washington with other gentlemen. Q. What occurred while there ? (Objected to. Plaintiff' offers to show that Mr. Andrews' appointment was pro- cured without any intervention or agency of Mr. Opdyke, and to contradict McNeil on that subject. Admitted). Q. Was Mr. Opdyke there ? A. No, sir ; I went on tl|e 9th and left on the 15th ; it was a committee composed of Messrs, Ullmann, Bertholf, Price, Denison, Kirke, Cooper, and myself, which went on for the purpose of securing Mr. An- drews' appointment ; Mr. Opdyke was not with us ; the committee took no letter nor communication from him ; he had no intervention or agency in the matter of any description ; I never dreamt of Mr. Opdyke in the transaction at all ; never heard him mentiontd ; I was present at the interview with the President. Q. By what means, and in what manner, was that appointment of Mr. Andrews made ? (Objected to, on the ground that it would open up the whole subject of what influenced the appointment. Court admits evidence of what took place before the President.) A. On Tuesday or Wednesday, the 10th of July, 1861, the com- mittee I have named was at the President's mansion at 12 o'clock ; he informed us that he was busy, and asked us to call at 8 o'clock in the evening ; we called, and had an interview of an hour and a half or two hours ; we had prepared a writ- ten argument or statement urging the appointment of Mr. Andrews, alleging the services he had rendered and the services his friends had rendered ; we stated to the President that we did not belong to the Republican party, and never had, but we had supported him ; that Mr. Andrews and Gen. Ullmann had rendered very essen- tial service ; that we had no one in Washington to represent our interests, and there- fore had come to him to look after the interests of the American party ; the Presi dent, after hearing everything that took place, and reading over the paper, stated, ^ v'^ 106 Gentlemen, I appreciate the service you have rendered to me in the last canvass, biit I am not prepared to decide this matter this evening ; I have made an implied promise to the Secretary of State that, before I decided this matter, I wonild consult vrith him in reference to the premises, but by Thursday evening this matter shall be settled, and you shall not be disappointed ; among other things, Mr. Ullmann stated that he and Mr. Andrews had called on him at Springfield, 111. , before the inaugur- ation, and he had then agreed to take care of the American interest ; that if he in- tended to carry out the promise there was now no other appointment of any note left in the city of New York, every other oSice being filled-, except this ; on Thursd:.y we received a satisfactory message ; we returned on the 15th ; Mr. Andrews re- mained a few days ; I have not stated all the conversation, but the substance of it. 1 Cross-examined by Mr. Eomis. — In summer of 1861 I was a lawyer. Q. What was your connection with politics then ? A. About the same as yours, su" ; I held no office. Mk. Evarts — I hope you will not refer to me, sir ; it is a great piece of imper- tinence. You are a lawyer, and know better. Mr. Brewer — I meant no disrespect ; I shall not do so. Q. What was your connection with the American party ? A. I was a member of the party ; I was not a member of any committee ; these gentlemen I have named were friends of Mr. Andre ws_^; I suppose a self-constituted committee ; we had commuicated with Mr. Andrews on the subject of aiding him ; in fine, Mr. Andrews stated to me that it had been intimated to him that he could get this ap- pointment ; Mr. Andrews went on and returned ; Senator Harris, it was said, had stated that it would be a good thing for Mr . Andrews, if some members of the American party would go on and urge his claim to the President ; I knew there were other candidates for the office ; knew the parties pressing each, and that they were not friendly ; I had very little to do with Mr . Opdyke at that time in poli- tics ; we were of different parties ; I have no copy of the paper presented to the President ; i^ was written by Dr. Price or General Ullmann ; we all, including Mr. Andrews, made suggestions ; it was stated to the President that Mr . Andrews had greatly impai,red his health by his exertions in that campaign ; also, that we had got up a ineeting, immediately after his nomination, irrespective of party, support- ing him ; Mr. Ullmann also reminded the President that he and Mr. Andrews had called on him at Springfield, 111., before the inauguration, and obtained his pro- mise that he would take care of the interests of the American party ; also, that he (Mr. Ullmann) now withdrew all claims for himself ; the committee met frequently at my house, from the inauguration up to Mr. Andrews' appointment ; I fix the time of our meeting Mr. Opdyke in the street about the 1st of July, from the fact of my going to Washiiwton on the 9th, and also from the fact that General Ull- mann was here at the time, and 'returned a day or two after the conversation ; Gen. Ullmann is now at Port Hudson. TESTIMONY OF GEOEGE W. BLUNT. George W. Blunt called by counsel for plaintiff. I am a chart and book pub- lisher ; I have resided in this city since 1810 ; I have been an ardent amateur in politics until within the last year ; I was Chairman of the Finance Committee in 1859, when Mr. Opdyke first run for Mayor ; we raised very little money then. Q. Has it been customary to raise money for election purposes from employes in the public offices ? (Objected to ; excluded as having been already sufficiently proved ; exception taken.) Q. During the second Mayoralty canvass, when Mr. Opdyke ran, what was done in respect to raising money ? (Same objection and ruling.) By the Court— If you know anything about collections through the Custom- house from the Surveyor of the Port^ you may state it. A. I know nothing about it. Q. Had you anything to do with collections Or committee-men, or otherwise, in 1861 ? A. No, sir ; I was a subscriber to 4he fund to the committee of which Ti- mothy G. Churchill was Chairman ; the friends of Opdyke met at Mr. Churchill's house, sojne fifteen or twenty in number, when some money was subscribed, and a /i^(o lot committee was appointed to solicit further subscriptions for Opdyke's election ; this was after the nomination, of course. Cross-examined — It was, as usual, a few days, say ten or fifteen, preceding the election TESTIMONY OF TIMOTHY G. CHUECHILL. Timothy G. Churchim-, called by counsel for plaintiff. I was Chairman and Treasurer of the Finance Committee when Mr. Opdyke was elected Mayor ; a meet- ing was called at my house in November, with a view of raising funds to defray ex- penses ; some twelve or fifteen or more were present, and subscriptions were taken up, amounting to $2,500 that evening ; after the meeting took place, I went around, in company with Mr. Cowden, among some of Opdyke's friends ; I think we two were the only persons engaged in collecting funds ; we" called on Mr. Barney to know what amount might be expected from the Custom-house, and he said that notes had already been sent to most of the employes ; and many had sent in their contributions, and we might probably rely on from $10,000 to $12,000 from the Custom-house ; I reported that to Opdyke. Q. State what passed between you and Mr. Opdyke ? (Objected to ; excluded.) Q. Did you afterwards receive any money from Mr. Barney ? A. I received two checks— one for $5,000 and the other $1,482 ; I think they were payable to my order, and that I indorsed them both to Mr. Opdyke ; he had previously advanced about $9,000, which passed through my hands ; I think he expended ^altogether near $20,000 for his election ; I can only state from what I have heard, whether other sums came through the custom-house. Q. During all that time did you hear any intimation from any quarter that there had been any arrangement between Opdyke and Andrews or anybody else to get a certain sum of money from the Custom-house ? (Objected to ; excluded.) Gross-examined —Q,. What originated this meeting at your house ? A. I had conversation with two or three gentlemen on the subject, and with Mr. Opdyke also ; he, however, was not present at my house ; we collected from the Custom- , house about $6,482, and I collected myself from friends over $2,500, making over $9,000 in all ; the idea of going to the Custom-house originated among some of the friends, possibly with Mr. Opdyke himself ; I think Cowden and I went the day after the meeting to the Custom-house in a carriage ; I did not get the money from the Custom-house for some time after I had paid out the money ; I first called on Mr. Barney and he said that the notices had been sent out, and Mr. Palmer had charge of them ; I went up into Palmer's office, and there I saw Andrews. Q. Did not Mr. Barney suggest to you to see Andrews? A. I do not think he did ; I have no recollection of it ; I will state that I understood Mr. Barney to say it was customary to make assessments, and they were coming in pretty well ; I think he did not approve of the plan himself, but the party seemed to require it, and be submitted ; I think I inquired how soon the money could be received, and he said in a few days. Q. Can you give the dates of those checks ? A. I made an account at the time, and I see that the last check was received, I think, on the 7th of January, and the $5,000 check appears with no date opposite, but is under the date of December 2 ; the whole sum was received after the election (December 4) ; I found there was a balance due me of some $942, and I sent this account to Opdyke with the vouchers, and he sent me his check for the amount, which I had expended over what I had received ; after that, on the 7th of January, Barney sent me the further check of $1,480, which I paid over to Opdyke. Q. Did you see Barney and Opdyke together after the election when this mat- ter was spoken of ? A. I saw him after the election, but I think I never saw him in the presence of Opdyke in regard to this money. Q. Did Opdy^ce ever tell you anything that passed between him and Barney on the subject of the short collection ? A. t talked with Opdyke frequently about the amount to be received from Barney about the time of the election, and I think I talked with him before he went there ; he had not told me anything about the amount to be received from the Custom-house, but spoke of collecting money from the employes ; after my interview with Barney, I communicated the result of it to > 108 Opdyke, and told him the amount to be expected; Opdyke said that would help him out very nicely. Q. Subsequently, did you have any conversation with Opdyke in regard to the collection being less than he expected ? A. I think I did af ber the settlement of this account ; there was not much said, except that he paid the difference, what- ever it was, in the amount expended ; he expressed the same opinion that I did, that I did not get as much from Barney as he had promised ; he thought the same thing, and expressed his disappointment at Barney's having promised $10,000 or $12,000, and his having received no more than he did ; he did not state what he received ; I got only the $6,000. Q. How do you know that Opdyke spent $20,000 ? A. I so understood from him, during various conversations — $20,000, including what was collected from all sources ; I saw him pay money out of his own pocket ; I can't say how much he paid out of his own pocket, but I presume it was the difference between what I collected and what he expended. Re-direct — ^The money I received was paid out to the various ward organizations, through vouchers ; I know that Opdyke paid money to the same, for printing, post- ing, &c. Re-cross— 1 saw the money paid by him in the Committee-room, to various per- sons representing the different wards, as they said. The Court here adjourned till Tuesday, January 3, 1865, at 10 o'clock. A Juror stated that he expected to have a blow-out, and would be unfit to be present on Tuesday ; he wanted another day. [Laughter.] The Court — Tou will have to postpone your blow-out till the following week. Adjourned to Tuesday, Januaiy 3. FOURTEENTH DAY. TUESDAY, JANUARY 3d, 1865. The trial of this case was resumed. TESTIMONY OF JOHN J. PHELPS. ^ The plaintiff called John J. Phelps, a retired merchant of New York, who was aske4 if he had at any time been applied to by Mr. Morris Ketchum and his asso- ciate to join in the purchase of the Mariposa Estate. The defendant's counsel objected as irrelevant. Plaintiffs counsel proposed to show that the witness de- clined, for the purpose of showing that it was an enterprise so undesirable that very few could be persuaded to join in it, as evidence of good faith in those who under- took it. Allowed. Witness — Mr. Ketchum sent me a pamphlet explaining the advantages and capabilities of the Mariposa property ; he then called at my house, and said the property was offered at a certain price ; I cannot say what the price was ; I think General Fremont was to give one-quarter of his interest to the parties who would come forward and pay the debts ; I told him I would be one of the parties, provided the property could be got possession of ; there was no difficulty ; some of the parties demanded gold ; I made it a condition that certain parties who demanded $300,000 or $400,000 should take pay in currency ; negotiations by telegraph were entered into, and the party declined to take currency ; I then said I would have nothing to do witli it, owing to this, and the complications and trouble growing out of it ; I considered it a very complicated affair. By the Court — Was your refusal based upon the complication and trouble or want of pecuniary value in the property ? A. Well, I thought it an exceedingly difficult thing to get hold of ; I did not change my opinion as to its value, but I thought the complieations reduced the value a good deal ; that it could not be well got hold of. Cross-examined — Q. Did you not understand the property to be ample security for the mortgage debt that would need to be raised upon it ? A.I did not know of any 109 mortgage ; I was to advance so much money — I think $200,000 or $300,000 ; there was no talk of a mortgage with me ; I supposed we were to take the position of the creditors by an assignment ; that we would have? to come in with a certain sum of money, and take the place of the creditors ; there was nothing of a stock company mentioned to me. Q. Were you offered one-fifth of $2,500,000 of stock? A. No, sir. Q. What was the aidvantage held out to you for your coming iu ? A. The mere value of the property, with the incumbrances removed ; that it might be improved to advantage. Q. What share were you to have of the one-fourth to be devoted to that pur- pose ? A. An equal share with Mr. Ketohum and Mr. Opdyke and Hoey — one- fourth of the one-quarter ; 1 think these proposals were made to me some time last winter. Q. You are pretty actively employed with your capital and means in operations that seem satisfactory to you ? A. No ; I canirot say I am ; I keep it invested — not in speculations. Q. Did you regard this as a speculation if you had gone into it ? A. I do not know what I should call it ; I probably should have considered it as a good invest- ment if the debts were paid. Q. You did not consider there was much risk of the money you should put in ? A. I thought there was a good deal of risk ; there was a great deal of difficulty in getting possession ; the property was to be sold within a week, and immediate steps had to be taken ; it was a great way off, and there was difficulty to get attendance ; the price was the payment of the lien upon it ; uiy impression is that $1,200,000 was to be paid in money without much delay ; I suppose we were to take the place of creditors, and to receive the contingent advantage of the \ of General Fremont's fth. Re-direct — Were you not mistaken in saying J of f ? Was it not \ of the whole estate to come out of General Fremont's 6-8 ? A. That may be. Q. Did you not understand you were to have ^ of a bonus for going into this operation ? A. Yes ; I understood it was to be \ over and above the debts, and I was to have one-fourth of that. GEORGE RUSHER CALLED. Geokge RtrsHER, of Brooklyn, doing business at No. 16 Beekman street, was called to prove that he knew the general reputation of Henry D. Stover ; that his reputation for truth was very bad, and he did not think he would believe him under oath. TESTIMONY OF J. B. WARING. J. B. Waring, of No. 312 West Twentj'-fourth street, a machinist, was sworn. He testified that he was acquainted with gun machinery ; that from December, 1862, to July, 1863, there was an advance in the price of machinery of from 25 to 50 per cent. ; he had occasion to inquire during that period, and was deterred from piu'chasing for other parties by the increase in price ; iron had increased from 30 to 50 per cent., and labor 20 per cent. Q. Is machinery rendered more or less valuable by being used two or there months? A. To the owners or those using it, machinery is increased in value by a few months use ; it runs more easily ; in making tools there is considerable breakage, and in using tools there is very considerable loss from breakage and wear, and in gun machinery the tools mostly used are milling tools, and they require tQ be ac- curately made and kept in proper shape. Cross-examined — I am thirty years old ; I have worked on silk and gun ma- chinery, making gun-sights; was brought up to the business of machinist; I at- tempted to buy milling machines in December, 1868, and then ascertained the price, which was from S200 to $500 ; I also tried to buy in Jime, 1863, but prices had gone up and I did not buy ; I went to Worcester and Hartford for that purpose. TESTIMONY OF JOHN A. SCHENCK. John A. Sohenck called by plaintiff — I have been a machinist 80 years ; I have no made a few gun machines ; machinery, iron and labor advanced in price from De- cemher, 1862, to July, 1863, from 20 to 50 per cent. ' Cross-examined — Material has been advancing in price since July, 1863 ; I now pay 10 and 12 cents a pound for the same things that I bought for 4^ in 1863 ; I should not think that the wear of tools in a gun factory would be more than 10 per cent, without regard to replenishing. TESTIMONY OF WILLIAM H. AEMSTEONG. William H. Akmstkong called by plaintiff— I am a lawyer ; in 1863 I was pri- vate secretary to the Mayor ; I assisted in the correspondence in the office ; a record was kept of official letters, and some important proclamations ; (book produced ;) on the 18th of July, 1863, a communication was addressed to Thomas C. Acton, President of the Board of Police Commissioners ; I have no doubt it was sent ; (communication offered in evidence ; objected to as too remote from any issue.) Mr . Fi ELD said that the counsel in his opening charged that Mr. Opdyke connived at the desti'uction of the armory. Counsel for the defendant denied that such charge was made. Mb. Field said that questions were put to the witnesses with the view of show- ing that fact. The Court allowed the record to be read. Witness then read communication to Mr. Acton, also one to G-ov. Seymour, one to Gen. Wool, one to Gen. Sanford, and one to Admiral Paulding, on the day of the riot ; also telegrams to Gov. Seymour and Secretary Stanton. TESTIMONY OF HERVEY K. SHELDON. Hbrvey K. Sheldon, being called by plaintiff to testify to the character of Mr. Stover, said that his general character was pretty bad ; he had but slight acquaint- ance with him and could not say as to his character for truth an d veracity ; from his general character I would not believe him under oath. TESTIMONY OF CHARLES E. JENKINS. Charles E. Jenkins called by plaintiff — I am of the law firm of Jenkins, Op- dyke & Ackerman ; I sent out the commission to examine the Secretary of the Navy ; I have received several letters from Mr. Brown, the commissioner at Wash- ington, informing me that the Secretary had referred the question to the President, and the President to the Attorney-General ; I received a telegram yesterday saying that he hoped to have a favorable answer this morning ; I have telegraphed back to execute the commission if possible. (The object of the commission is to get the record of an alleged conviction of Mr, Stover of some criminal offense.) TESTIMONY OF GEORGE OPDYKE. George Opdyke, sworn examined by Mr. Field : Q. When and how did you become connected with the armory in question ? A. My first connection with it was under a contract made in the name of Farlee on one side and the patentees on the other, dated December 18, 1861, Mr. Farlee combining the interest of McNeil and myself ; there had been a previous contract between the patentees and McNeil in the name of Hendrickson, dated December 13, 1861 ; the contract with Farlee was five days later ; it was to manufacture 10,000 Gibbs's breach-loading carbines for the Government ; after McNeil had obtained the contract in the name of his friend Hendrickson, he, Farlee and myself had conferences with regard to takihg that contract, and to making a coincident contract with Marston, the gun manu- facturer, to produce the arms for us. Q. What was the arrangement between you, Farlefe and McNeil ? A. The dis- tinct understanding between us 'was that after we had agreed upon the terms first with the patentees and secondly with the manufacturer, Marston, with the former at $21.50 and the latter at $17.50, leaving a profit on the two contracts of $4 per gun, McNeil should have $1.70, Farlee 60 cents, and myself $1.70. _ Q. What was said and done between you ? A. McNeil informed us that in the obtainment of this contract he had made an advajice of $7,500, which was to be repaid out of the first guns delivered, and he asked that I advance one-half or re- HI imburse him one-half ; he had given $5,000 in money and a draft on Hendrickson for $2,500, and he asked me to pay on the acceptance, when due, $1,250, and make up the one-half, which would be $3,750 ; then in making the terms with Marston, he required an advance of $5,000 ; so it was,agreed that McNeil should advance one- half and I the other ; that Farlee should attend to making up all the papers, bring a lawyer, and they should be in his name ; that he should take all the trouble of the contracts off our hands, to be made$in his name. Q. Was there any other advances between you and McNeil at that time agreed upon or contemplated ? A . That was the only advance contemplated ; Marston said it was all he should require ; it has appeared from the testimony of Mr. Jones that McNeil asked that Jones be a party ; I peremptorily refused, and said, we have nothing whatever to do with it ; and about the time the thing was consummated, McNeil informed me, for the iirst time, having previously stated that he had money enough to advance half that amount, but not the whole ; that this money was his wife's, and he desired that the interest should be considered in her name ; I don't think I asked him if he had judgments over him, but I inferred so froni this in- formation ; had I known that at the time the negotiation began, I should never have gone into a joint interest with him. (Objected to, and excluded.) Q. After the first arrangement with Marston, were any, and if so, what advances made by you to him ? A. Large advances were subsequently made to Marston ; he had previously made guns mainly, if not exclusively, by hand, and was very much mistaken in the amount of capital required for making them by machinery ; he called very rapidly for further advances until the amoifnt had perhaps doubled ; I refused to go further on what I deemed insufficient security in a business with which I was not familiar, and known to be hazardous, unless the contr ict was changed ; he very cheerfully assented, and we made a new'one, reducing the price of the gun to $17, on condition of my advancing $15,000 ; I went on and advanced perhaps double that amount ; I then again refused to go on, fearing that.under his management the time of the contract might expire, and we won Id have the guns on our hands ; I questioned him very closely about the time required, and he gave me assurance that with more money he would be able to get them out ; I then agreed to advance $40,000 or $45,000 on condition that he would annul the con- tract and make the guns for $16.50. McNeil also agreed to abate 25cents from his interest. I went on until my advances reached nearly S70i000 ; the guns were not completed, and we became fearful that Marston would not be able to execute the contract in time ; we therefore deemed it important that some change should be made. I asked Marston to find some other capitalist to take my place ; he did not — perhaps could not find one ; then I asked him, as an alternative, to sell the pro- perty to us : that if I should foreclose my chattel mortgage, the property should be sold to parties not engaged in manufacturing that gun ; the machinery might bring very near its value, but the tools would bring very much less, and it might be ruinous and I might fail to get back my money ; Mr. Farlee had gone around and consulted different experts in the business, and we were satisfied that with pro- per management the guns could be made at a profit ; so rather than injure Mr. Marstoh and sacrifice any money ourselves, we agreed to purchase him out at a fair valuation of the property ; thereupon appraisers were chosen, their decision not to be final, but if both were satisfied with it the sale was to be consummated. Q. What was the state of the contract at that time? A. The profit was $5 per" gun, of which Farlee was to get 60 cents, McNeil $1.45, and the balance was to come to me. The appraisement was made and McNeil, Farlee and myself examined it carefully ; some of the items struck us as being too high, but Colby and Knowlton the appraisers, assured us that it was right, and we finally agreed to accept the valuation and make the purchase ; the payments were made by canceling the notes given by Marston to McNeil, $2,500, and to me amounting to'nearly $70,000, and to pay a list of indebtedness, representing property on the premises not otherwise inventoried, amounting to $16,000 ; McNeil being apparently more anxious than others to consummate the purchase, agreed without my knowledge to pay $2,000 in addition ; Farlee and I claimed certain deductions for rent, coal, &c. , and it was finally compromised by this agreement of McNeil ; Marston afterwards told me what he had done, and it was accompanied with a condition that I should dis- 112 count the note at 4 or 6 months, which I agreed to do, and the sale was consum- mated. Q. By whom was the purchase made? A. It was made in the na me of Farlee in the joint interest of himself, McNeil apd myself. Q . After that purchase who carried on the business ? A. Mr. Farlee was put in charge, and we employed as foreman Mr. Knowlton, who assured us that he would be able to finish up the equipment and tools, and turn out finished guns in time to execute the contract ; he seemed to be an energetic man and that was one of the reasons we were led to make the purchase ; Knowlton remained until about the 1st of February, 1863 ; he failed to get on as rapidly as he promised and we had some intimations that he was in collusion with some of the sub-contractors, making a commission on their contracts ; I never knew whether it was true ; McNeil said it was certainly so ; at all events it was sufficient to shake our confidence in him to- gether with his want of success ; so we got another man, Mr. Keene, who proved to be a capital workman, very energetic and very faithful ; he went on and early in May began to turn out guns, two or three a day, and increasing the number from day to day till it reached at the time of the fire 50 per day. Q. How much were you at the-armory ? A. I iisually looked in about twice a week on my way down to the Mayor's office ; I would question Keene .very closely about the progress and make such observations as would occur to a mere layman not acquainted with machinery or tools ; I saw the changes and was satisfied with the progress. Q. On the 13th of July, 1863, what was the condition of the armory as regards prosperity or otherwise ? A. At that time we were very well satisfied with its con- dition ; the works were finished and the product quite as large as we had expected. Mr. Keene said that some few machines and tools were required to bring it to its ultimate capacity, and he believed from that time forward he could produce 50 guns a day at a very fair profit ; we were very much encouraged, so much so that some weeks previous to the destruction I suggested to my son-in-law and one of my sons, who had mechanical taste, that if they would take up the business I would become a" , special partner. Q. Did you make any estimate of the pi'ofit you expected to make out of it ? A. Having nearly $200,000 invested in it, according to my habit as a business man, I looked after my interest, and obtained all the information I could from the most trustworthy sources, from the superintendent and employes, and arrived at the con- clusion (objected to) that from that time we could 'make from $4 to $5 a gun clear of the royalty ; I took a good deal of pains to ascertain the facts, and found as I believed, that theguu was one that would be very desirable, not only for the war, but for general sale at the West for men on horseback, Q. Look at that statement (printed) of the account of the profit and loss on the armory, as it appeared when the claim was presented to the Board of Supervisors, and also as the matter was finallv closed, and say if it is correct. A. Those two accounts are correct ; the first was not made up in this precise form prior to the presentation of the claim ; this is more accurate, being revised ; the result of the last one is a balance against the concern of $1,555 34 ; the proceeds of the auction sale of debris do not appear here, they having been applied to the payment of debts which do not appear here ; I have only Farlee's statement for that. Q. Tell the jury whether in the course of the riots there was any design on your part to have your armory destroyed ? A. Not the slightest. Q. You omitted nothing and did nothing with that view ? A. Nothing what- ever. Q. What did you do to suppress the riot and protect the property of citizens ? A. I arrived at the Mayor's office on the morning of the 13th, about 10^ o'clock ; I had been there not more than fifteen minutes before a messenger arrived stating that there was a serious riot in the upper par t of the city ; in about five minutes more another messenger came, and said that they were demolishing the Provost- Marshal's office in the upper part of the town ; that the police had been driven back, and Superintendent Kennedy was very seriously injured, and that they had set fire to the premises ; thereupon I at once addressed a note to the President of the Police Commissioners, also to General Sandford, and another, soon after, to Gen- //* t? 113 eralWool ; General Sandford came over, and after some conversation on the de- fenseless condition of the city, in consequence of the regiments having been sent to Pennsylvania to repel the invasion, said he would do the best he could ; we mu- tually agreed that it was best it should be done immediately, that the only way to put down the riot was to meet it in its inception with rigor, and to use no blank cartridges ; he at once went about the business ; very soon Major-Gene ral Wool came in, and he at once coincided with me, ordered out what troops he had in the vicinity, and joined me in efforts to collect them from the adjoining country ; we sent telegrams besides those read here this morning ; we sent a messenger to the Governor of New Jersey, understanding that there were regiments at Newark ; we 6ent to West Point, to Utica, to Rochester, and to the eastward for a regiment that had just pasE^ed through this city ; meanwhile Commissioner Acton came into my office some twenty minutes after General Wool had left ; I asked him to join in the requisition that I had made for the militia, telling him that it was desirable to have all possible unity of action ; he declined, thinking, I presume, that the proper time had not arrived ; I learned afterwards, that in the afternoon he did join in the requisition ; about the time General Sandford was leaving my office Farlee came in and said that he had come down from the armory in the morning, and while down town liad heard of the riot, and he thought the armory would be very likely to be attacked for the purpose of getting guns, in all of which we coin- cided ; he then asked me if I would give him official authority to arm the workmen ; I told him I had no doubt at all of the propriety, but as General Wool was there I would consult him, which I did, and he coincided ; so I gave him orders to arm his men, and told him to shoot down any one who attempted to break in, and to de- fend it to the last ; some time in the afternoon, Farlee returned and stated that he had found the building in the possession of 25 or 30 policemen, that he had put arms and cartridges in their hands, and they felt entire confidence that they could protect the premises ; I felt very much relieved, supposing that with the workmen and the police the premises were secure, the first attack having been repulsed ; about four o'clock, having nothing more to detain me at the office. General Wool having his headquarters at the St. Nicholas, General Sandford having gone to de- fend the arsenal on the wbst side of town, and the Police Commissioners' office be- ing near the St. Nicholas, at the suggestion of the Sheriflf, made a third time, I went to the St. Nicholas, arriving there a little after four. Q. Was Gov. Seymour there ? A. Gov. Seymour was not in the city till the next day at 11 or 12 o'clock ; all this time the alarm was very general ; hundreds came to me saying that their premises were threatened ; having no force to pro- tect them, I stated to them very frankly that we had not police and military to meet the rioters actuallj'' at work, and it was therefore impossible to defend prem- ises only threatened ; about this time notices began to come in demanding protection of property threatened, with a view to secure legal rights in case of destruction ; these notices I sent to the Police Commissioners, who had joint control of the po- lice and military forces ; Gen. Wool was going to place Col. Nugent in command under him ; I recommended Gen . Brown as an officer of more experience and ca- pacity, and at the request of the Police Commissioners he was stationed at their headquarters to co-operate with them, being under the direction of Gen. Wool, who put himself under my direction ; at the same time I went and asked the Police Commissioners to arm the Police ; up to 8 or 10 o'clock that evening we had failed to get the State militia under arms to the extent of more than 700 or 800 men. and there was some uncertainty whether they would be trustworthy ; the thing threatening to assume a party aspect, the Commissioners felt unwilling to arm the police without the sanction of the Governor ; I told them if they were unwilling to take the responsibility I would make the requisition and provide them with arms ; they were armed sufficiently at the arsenal ; they declined, how- ever, to do it during the afternoon ; Mr. Jones has testified that he came to me and notified me that the Police had been withdrawn ; I assume that he is right, though I have no recollection of it ; but I do know that some time in the after- noon Mr. Brooks, who felt a great personal interest in the matter in view of his royalty, told me that the Police had been withdrawn, and I learned from other sources that they had concentrated at headquarters ready to be sent out ; I con- 114 suited with G-eneral Wool whether it was possible to detail any force to defend' the armory ; he had none, and Gen. Brown was co-operating with the Police Commissioners; Brooks said there was artillery on Governor's Island, and if he could get it he would guarantee to defend the armory ; Gen. Wool gave the re- quisition, and Brooks went and got it ; I learned that he arrived at the armory with his artillery after it had been fired ; every possible effort was made by me to protect the property of every citizen ; of course I make no distinction between my own and the property of others ; meanwhile, during the afternoon my own dwelling was attacked and there was no police force to protect it, but the elo- quence of some of our leaing citizens dissuaded the mob and they went away ; next morning it was again attacked ; no police were there to defend it ; I mention this because it has been stated that a force was sent there ; my wife and youngest son were driven out, and made their escape through the back door into the base- ment of a neighbor's house ; they got into a carriage, were chased by the mob, who shouted murder after them, and came down to where I was. Q. What did you have to do with the claim for damages, upon what principle was it made, and what did you think of it ? A There was some debris left, and my first cave was in regard to that ; my booli-keeper, Paret, said the remains would probably bring something, and it was important to gather them, or the boys would carry them away ; so I went to the Comptroller and got his consent, and then au- thorized Paret to dispose of the debris ; all the books being destroyed except the cash-book, in conferring with Mr. Farlee, and. I think, Mr. Keene, as to how it would be possible to get a correct inventory of such a multiplicity of articles and mate- rials ; we both agreed that it would be impossible to even approximate accurately ; the suggestion occurred to me whether it would be properto present the aggregate of the investment and liabilities, and deduct , therefrom the receipts, waiving any claim for profit ;' but it at once occurred to me that that would not be a legal form, as the city authorities might assume that we had been doing a losing business, and would not know what property we had actually lost ; casting about as to the best method, I having a large interest, being Mayor of the city, and my situation being a delicate and embarrassing one, I was anxious to make the claim as accurate as possible ; Mr. Jones came into the office and suggested that the most feasible and practicable method would be to charge for the machinery and tools as they existed, and for the guus at the contract price less the cost to finish them ; he gave me no figuring ; he had a blank fonn in his hand — so many guns at such a price, less so much for finishing — or something in that way ; the interview was very short, and the conversation very brief. Q. Did he make a statement of the expenditures and receipts, and the claims of Farlee and McNeil and others? A. Nothing of that sort, no remarks whatever with regard to the rights of outsiders, merely as being a proper method of malring out the account, I told him I would consider the matter and he might make the suggestion to Farlee and we would consider it ; I afterwards saw Farlee and we carefully con- sidered the question, and we decided that that was a proper, legal and correct method of presenting the claim ; that if any profits had been made we were entitled to it ; we hoped there had been some ; 'vye could not tell ; I asked Farlee to confer with Keene to know whether we could get an accurate account made in that foi"m ; he did so with Keene and the book-keeper.-and'they thought they had sufficient data to get it up accurately in that way ; I told Farlee that if they felt confident of it, to authorize them to go on, and I enjoined the strictest accuracy, and that whenever a doubt existf'd to give the city the benefit of it ; not to charge a single item but what the}' were confident was there ; they were some weeks, I think, completing it, certainly ten days to two weeks. Q. Did you believe that to be a fair, honest, and true mode of making out the claim ? (Objected to — allowed — exception ) A. I believed it to be a fair, just, and honest mode, and a just, fair and honest claim, made out less than the actual value of the property lost. Q. Have vou any doubt about it? A. Not the slightest— never had. Q. Was there any concealment ? A. No. sir. (Objected to.) Q. When this claim was being made up, was anything said at any time about the increased price of machinery, or its subsequent appreciation in value ? A. Yes. 'J^ 115 It was represented to me by Mr. Farlee and Mr. Keene that material had advanced in price since the time this purchase was made, they felt that we were entitled to replace the same machinery and tools there,.and they urged that it be charged at its then market value— what it would cost to replace it. I acquiesced in the justice of that form ; but I felt it was a claim in which I had a large interest, and as I was one of the city officials, I would prefer to waive that portion of my right, and pijt it in at cost so as to prevent any future criticism. This claim was presented to the Comptroller, then to the Supervisors. Q. Had you any conference with any of the Supervisors, in relation to this claim? A. The only one I recollect speaking to prior to the final consideration was with Mr. Purdy, once, possibly twice in my office ; it was after the claim was ex- amined by Mr. Blunt and before it was acted upon ; I said to Mr. Purdy that the claim which had been presented in Mr. Farlee'sname, and in which I was interested, was a large amount of money to lay out of, and if he could do anything in having it acted upon, I should be obliged, without doing injustice to the claims of others ; that I wished no priority in its consideration, but if anything could be done to ex- amine it I would be gratified ; I never had any conversation mthany supervisor in relatio i to it except him, and with him only, as to the time. Q. When the matter came up before the committee, finally, state whether you were sent for. A. I had been frequently sent for by the committee to come up and be present at the examoiation of various claims ; I was sent for on this occasion more than once ; when I reiched the room some small claim was under considera- tion ; then the claim of Mr. Wakeman was taken up ; that was gone- through with after various propositions in regard to reduction, and a liberal abatement made ; then Mr. Farlee' s was taken up, and very soon after that was taken in hands, I said to the Supervisor : " Here is a claim in which I have an interest, and I feel it is indelicate for me to be present; but before leaving I will say this : I enjoined Mr. Farlee and the others who were making up tlie claim to be as accurate as pos- sible, and to make the claims just ; it is for you to judge whether they have done so or not ; I have no knowledge of its details, but I notice by your proceedings that your rule is to treat these claims with a great deal of fieedom, and I desire you to treat this with the same freedom ; I desire no forbearance because I am inte' rested : I wish you to treat it with the same rigor and freedom as the. rest ;" I was not there on the action of the coinmittee ; I was not at the meeting of the Super- visors. • • Q. Afterward the resolution came to you with 49 other claims for your approval ? A. Yes, fJir ; may I state my reason for approving? It cims, I believe, in connec- tipn with some 40 odd others, all in one resolution ; I feared it might possibly mis-" represent me to approve a claim in which I had an interest myself ; I felt, on the other hand, a very clear conviction that the claim, instead of being too large, was too small ; there were no good grounds for cutting it down ; being convinced it was right, and being unwilling to delay other claims for ten days in getting their funds, I felt it was my duty to sign it together with the others. Bt the Court — Did you suppose that you could not refuse your assent to this claim and allow the others? A. That I believe was the case. After the claim was paid I had a settlement with Brooks, the agent of the pat ntee ; Mr. Farlee nformed me that Mr. Brooks claimed the whole of the royalty ■ n the 6,000 unfi lished guns, and threatened to prosecute his claim unless it was paid ; I had a conference wjth Mr. Brooks at my house ; I ins-sted that equity demanded a reduction ; he offered to settle with the payment of an additional $10,000, having already received about $11,000, the claimbeing about $26,000 ; being an abatement of $10,000 ; I offered to settle with him by giving him $5,000 more, which ^uld make an abatement on the whole of $10,000 ; this he refused, and left with the declaration that he would prosecute unless we paid him $5,000 more ; subsequently $5,000 was paid him ; the settlement with Remington was as it appears on the account. Q. State whether you made any offer to McNeil, and what it was. A. After the City had settled the claim, and we had settled with the patentees, McNeil came to the Mayor's office and demanded a settlement with me ; I told him I was prepared to settle with him just as soon as the account could be examined and adiusted ; lie claimed $2 a gun ; I told him he had no such claim at all, that our interest was a joint one ; that if there was a profit he was entitled to his propor- tion ; that we had obtained from the City less than we were entitled to ; that he was ready to settle with him on the hasis of returning to, him all the capital I had put in, with interest on it, and all the profits ; that on a rough estimate the profits would net perhaps $2,0p0 ; he flew into a violent passion, and said he Would make no such settlement at all ; that he must have $20,000, which was the amount he claimed ; I endeavored to pacify him ; he was very anxious that Mr. Williamson should have something to do in the matter ; we met at my house with Mr. Williamson ; I repeated my offer, which he declined, and subsequently a suit was commenced in the name of his wife. Q . Did McNeil say to you that the claim against the city was a great deal too small ? A. He did ; he said that the claim was too small ; that it should be m.uch larger ; that they were omitting many things ; afterwards met Mr. Hendrick- son, the assignee ; settled with him for $3,900 and odd ; a check of $1,500 had been discovered by Mr. Farlee, which it is supposed had been omitted from the ad- vances by me, which was added to the profits ; Mr. Heiidrickson settled with me on the same basis I had proposed to McNeil ; I said we should have a release from McNeil as well as his wife, as he had sometimes claimed to be part owner, some- times sole owner ; Mr. Hendrickson said he would obtain a power of attorney to sign a release ; then he thought there might be difficulty ; either he or Mr . Wil- liamson said it was not necessary that McNeil should know for what purpose the power of attorney was needed ; I did not propose that ; I insisted on having the release of McNeil as well as Mrs. McNeil ; they obtained it in their own manner, with which I had nothing to do. -^ Q. The libel says, " Opdyke disclaimed any interest in the gun claim." Did you before the Supervisors, or anywhere else, to any human being, disclaim any interest in the gun claim ? A. I did not. Q . Did you or not sit in the Committee investigating the claim of your son,-in- law ? A. No, I left, as I stated. Q. Was the $25,000 received from the government forgotten in making up this claim against the city ? A. No, sir, not forgotten by myself or by any others mak- ing up the claim ; it was not put in the claim against the city because it ought not ; but it appears on the cash book and general assets of receipts and disbursements. Q. Was any claim made against the city for the guns delivered to the govern- ment ? A. None whatever ; or for the material or expenditure on these guns. Q. In presenting the claim to the Supervisors did you declare that you had no pecuniary interest in it or not ? A. I did not. Q. I will read again, ' ' To qualify himself to act impartially and honestly for the tax-payers of New York, he disclaims being interested in the gun claim." Did you disclaim being interested in the gun claim or not ? A. I did not. Q. Then again, " A partner after calling the ex-mayor a swindler, prosecutes for a share of the profits, and in his defense, Opdyke made oath that he owns the ■ largest share of the contracts which before the claim was paid he had repudiated." Had yon ever made any such repudiation ? A. No. Q. Had you ever repudiated having an interest in that claim ? The Court — It is most clear he never did. Q. Will you state whether or not you repudiated having an interest in the gun claim ? A. I never did . Q. Tell the Jury all about this story they have got up about your having sold the office of Surveyor to the Port ? A. I certainly never sold the office of Surveyor. Q. Have you ever had any conversation with McNeil about getting Mr. An- drews appointed Surveyor ? A. None within my recollection whatever. Q. Did you ever have any conversation with Williamson about gfetting Mr.'An- drews appointed as Surveyor ? A. None within my recbllection. By tiik Couet — You may state whether you ever made such a bargain as stated by them or not? A. I never did. Q. Did McNeil ever say to you that Andrews would give, or cause to be collected from the Custom-House, $10,000 if you would go for Mr. Andrews for Surveyor of the Port of New York ? A. Never. 4 . lit Q. Did you ever say to McNeil "Won't he cheat me ?" referring to Andrews ? A. I did not. Q. What were your relations with Mr. Andrews at the time he was appointed Surveyor ? A. They were friendly. - Q. How long had they been so ?• A. For nearly two years, our political relations existed, and had been very friendly during that time. Q. Will you state whether or not McNeil said to you, if you wanted anybody else to help do this — that is, make this arrangement with Andrews — you should pick your way, and they would go together ? A. I did not. Q. Did you ever pick or choose Mr . Amor J. Williamson for any such purpose ? A. I did not. Q. Did McNeil afterwards ask you if you had seen Mr. Williamson on that sub- ject? A. He did not. Q Did he ask you if things were satisfactory, and you said they were ? A. The whole of that is a sheer fabrication. Q. Did you ever tell McNeil that you would drop Mr. Stanton? A. Never. Q. Did you afterward meet McNeil in Washington, when he reminded you of any such transaction ? A. Never to the best of my recollection ; I never met him in Washington at all. Q. Will you tell m6 whether you met him and Mr. Andrews there ? A. I think I never met him at all. Q. You heard this story about meeting him in Washington, and being tapped on the shoulder ? A . That is like the other ; that is a sheer fabrication, the whole of it. Q. Did Williamson ever go on any such errand for you, to make any such arrangement, or be a witness to any arrangement with Mr. Andrews ? A. He has not so stated. Q. Did he ? A. No; sir ; not to my recollection ; perhaps, Mr. Field, I had better state my own recollection of these circumstances. Q. Did Williamson report to you at your store any conversation that he had with Andrews about your getting him appointed Surveyor of .the port of New York? A, He may have reported a conversation he had with Mr. Andrews, but not of that kind that was contained in his testimony. Q. Anything about your getting Mr. Andrews appointed Surveyor ? A. Noth- ing of the sort that I recollect ; I was going to tell you that many political inter- views between Williamson and myself, and McNeil and mysfilf, have taken place, and some of them might have had relation to the office of Surveyor of the port, possibly before, but certainly after the appointment ; I didn't charge my mind with all the details that occurred on such occasions, but this I know, that I iiever did, directly or indirectly, with Mr. Williamson or McNeil or Mr. Andrews, make any such ; I never did have a conversation with either of them that contemplated the selling of my influence in favor of Mr. Andrews for the consideration of his ■ influence in raising money for the mayoralty election ; I would have had to change my nature entirely to do that. Q. Go on and state what you desired to state about your connection with that office. A. I and otliers had jointly recommended Henry B. Stanton, and there was another applicant advocated and recommended by others ; that was Mr. Wakeman ; it was understood the President favored Mr. Wakeman ; and the Secretary of the Treasury, in whose department this office was, was in favor of Mr. Stanton ; that controversy in relation to the appointment began immediately after the inaugura- tion of the President, and remained in that position until shortly before the ap- pointment of Mr. Andrews ; I met him, as he has stated, together with Mr. Ullmann and Mr. Brewer, and according to my memojy Dr. Price was with them also, but that may not have been so, in front of St. Paul's Church ; Mr. Andrews said to me, " I am going to be Surveyor of this port ;" that is the first intimation that I ever had that Mr. Andrews or his friends were applicants for that office \ I expressed satisfaction that a friend of mine was to have that place. '•■■•■' Q. What was said ? A.I said to Mr. Andrews, "I, as you know, have been a supporter, and arn, of Mr. Stanton for that appointment, but if he cannot get it, I shall be gratified that another friend of mine gets it ; it will be acceptable to me ;" 118 shortly after that I happened to meet Mr. Barney, and if it is competent to state the conversation which took place, I will state that I said I understood that Mr. Andrews has heen, or is to be appointed Sm'veyor of this Port ; he says, " Yes, I believe that is so," and he says, " I intended to have told you about this before, but I have not had an opportunity ; it is arranged that he shall have it as a com- promise candidate;" this was perhaps three or four days before the actual ap- pointment was made ; I never took any part in it, to the best of my recollection and belief, in his favor, but stood as one of those who had recommended and supported Mr. Stanton for that place. Q. Did you ever say or do anything to withdraw Mr. Stanton ? A. Accord- ing to the best of my knowledge and belief I am confident I did not. Q. Did you go to Washington to get Mr. Andrews appointed ? A. I did not ; to fortify my recollection I had the book at Willard's examined ; I believe I was not in Washington at all, and I am certain that it was not on that errand ; I never wrote a letter to any one for any such purpose ; the contribution at the Custom-house was set on foot after my nomination for mayor ; I have no recol- lection of ever asking Mr. Barney myself ; it may be that I suggested the propriety of setting on foot a contribution, it is very natural I should, but I have no recol- lection of it ; the day of the election Mr. Keyser came to me and said, ' ' The money that had been promised the Eepublican organization, of which he was treasurer, from the Custom-house, had not been collected in a form to make the payments; I advanced $2,000 ;" he said he would advance $1,000; I was told the Saturday preceding that the People's organization had failed toget the promised $3,000, and it -was represented that unless the money was advanced the organiza- tion could not be brought out to the polls, and we would lose their support ; I ad- vanced $3,000; and I advanced various other sums on organizations; my aggre- gate expenditure during the canvass being a little over $20,000, all of which I believe was legitimately used by the organizations in the city that supported me ; I got back $2,000 from Mr. Keyser, and $5,000 through Mr. Churchill, and in about a month $1,480, making the balance I was out of pocket the balance. Q. Did you ever have any conversation with Mr Andrews about collecting money at the Custom House ? A. If I ever had any with him, it was after my nomination ; I desire to state generally that I never had a pecuniary transaction with Mr. Andrews in my life ; I never dreamt of making any such bargain as selling my interest to him in return for his getting a collection in the Custom House, and it was not until he entered upon his ofloice that I had any interview with him in re- gard to the dislribution of his patronage ; I had previously supported Mr. Andrews for the office of United States District Attorney. Q. State what connection you had with the sale of articles to the Government ? A. They have all been stated by witnesses. Q. Did you ever " work in" at Philadelphia any blankets that were rejected in New York? A. I never did ; we had a contract for 25,000 pair of blankets, which we inspected as usual ; about 100 pair of these were rejected for different reasons, and were sold by us at private sale. The witness was examined in relation to the cloth purchased of Spaulding, out of which the 28,000 infantry coats were raade, and went Over the same subject as to the cloth not taking a good indigo blue ; owing to an error in transferring the con- tracts 4,000 coats too many were made, which were not accepted ; the firm lost over $7,000 by the whole transaction, and Mr. Smith $,5000. =" Q. Did you have any secret partnership for aimy cloth, blankets or gun contracts t A. Not secret ; Mr. Carhart has stated his connection with Opdyke & Co. ; in con- . sequence of delay in payment the capital had to be very large ; the profits were small and business vexatious ; the ne^t season we returned to our regular business, , and I have had no interest in any Government contract, direct or indirect, since, save in this armory, if it can be called a contract ; my individual interest wasabout ohe-third (34 per cent.) of the $172,000 made by Opdyke & Co. ; I never forestalled the market for^cloths required by the Government, and never attempted to do so ; there were a dozen ho,uses in the trade larger than ours. Q. Did you ever 'remind General Fremont that, when he ran for the Pres- idency, in 1856, he was weakefied by peoxmiary embarrassments? A. No, sir; I never had any political conversation with him, personal to himself. /St- 119 Q. Did you say that, as his friends intended to run him again, it would be well to put his affairs into better shape ? A.I never told him any such thing. The witness went into a statement in regard to the Mariposa matter — the same, in effect, with that given by General Fremont. There were negotiations in relation to the perfecting of title and ascertaining the amount of liens ; the whole affair was involved in almost inextricable confusion ; so doubtful were the advantages of the arrangement, even when finally consummated, that the witness declined to take the whole share (over one-third of the one-lourth of the estate) allotted to him, and one-fourth of his share was given to Mr, Crawford. Mk. Field read, in evidence, some telegrams passing between Ketchum, Op- dyke and Fremont, in New York, and Mr. floey when in California, TJie cross-examination of Mr . Opdyke was reserved till to-morrow. TESTIMONY OF FRANCIS C. CROSS. Francis C. Cross, called by the plaintiff', sworn — I reside in New York ; am dealing in machinery ; have been familiar with the prices of machinery, including milling machines ; in 1861 they were in great demand, from $175 to $600 ; in July, 1863, there was such an advance that I could not make contracts ; this was worse in relation to milling machines than others, in consequence of gun contracts; the market advance on machinery from December, 1862, to July 1863, was 50 per cent. ; a greater demand for gun machinery than any other ; it could be dis- posed of in workable order. I know Mr. Stover ; have dealt with him ; have heard his character for truth and vftacity spoken of ; never heard him spoken of other- wise than as a man lacking in vemcity; his general character for truth and veracity among those whom I have heard speak of him is bad ; I have heard twenty persons speak of him, and have avoided him on that account ; I would not believe him under oath. Cross-examined — (Mr. Henry D. Stovershown to witness) — I cannot swear him to be the Mr. Stover I have spoken of; he is somewhat changed ; I believe him to be the one ; the one I speak of was in Fort I^afayette. Adjourned to 11 o'clock to-morrow. FIFTEENTH DAY. WEDNESDAY, JANUARY 4TH, 1865. TESTIMONY OF MR. OPDYKE CONTINUED. Oeoege Opdyke cross-examined by Mr. Evarts — I came to this city in 1824 : have resided in New Orleans six years ; Cleveland, Ohio, two years, and for some years had my residence in New Jersey while engaged in business here ; returned here in 1853 or 1854 ; have resided here since that time ; have had business here since about 1841. Q. When first did you appear in political or public life ? A. I think I was a can- didate for the Assembly in 1857 or 1858 ; that was my first active connection with political life ; I was not then elected ; in the year following I was elected ; was in the Legislature one session, 1859 ; the ensuing autumn I became a candidate for Mayor of this city ; was a candidate for nomination for the Senate that same autumn ; but not nominated ; was not elected Mayor ; two years following, in 1861, I be- came a candidate for Mayor ; meantime, I think, some of my friends suggested my name to President Lincoln as a fit person for Secretary of the Treasury ; it was not of my volition ; I was suggested for the office of Collector of the Port, also, without any authority or Consent ; after my term of office for Mayor expired, I was not a candidate for any office, and hold no office now ; from the time of the election of Mr. Lincoln to my election as Mayor, I joined others in recommending persons to various offices ; I was in Washington during the inauguration, and two or three days subsequently, and occasionally visited Washington afterward; can't say how frequently from March, 1861, to 1862 ; I have no distinct recollection of the num- 120 ber of times, or the length of time I stayed ; I do not remember going in company with others, after the inauguration, in relation to appointments ; I went in relation to financial business ; with the Secretary of the Treasury and Navy I was on friend- ly, personal, and political relations ; so continued with Mr. Chase up to the time of his leaving office ; I have no recollection of going to Washington to influence appointments later than March, 1861 ; I may, while here, often have spoken in favor of some one ; I think after that there were very few places to fill ; I do not recollect my appointments to be made or urged ; my interviews in regard to finan- cial policy were with Secretary Chase, in company with others ; I also had a cor- respondeuce with him in regard to the best financial policy ; there was no special intimacy between us, but very friendly terms ; I have no distinct recollection of having exerted influence to have any one removed. Q. When in Washington did you exercise your influence to have Collector Bar- ney removed ? (Objected to — excluded) Q. When this factory was destroyed, what did you do toward ascertaining what there was in it that was burned up ? A.I had no personal superintendence ; I directed Mr. Farltie to take early and proper steps to ascertain and make out as cor- rectly as possible, through foreman and book-keeper, an inventory of what was lost ; I have no inventory save the claim presented to the city ; that was the ulti- mate result of the efforts to ascertain ; I asked Mr. Farlee to try and see if an in- ventory could be made up of the things that were in the factory when it was de- stroyed; finding that was impracticable, I conferred with him as to the propriety of making out the matter in the way it was ; an intermediate suggestion was to piake out total investments and deduct from it tlS total receipts ; the first plan proceeded no further than my directing Mr. Farlee to make out such a statement ; he thought it impracticable ; I have no recollection of any figures towards such a sch'-dule ; those in charge said it was impracticable, from the absence of books and papers which had been mainly destroyed, and multiplicity of articles from raw state to finished article ; those are all the difficulties I recollect ; then my mind turned to the plan of finding the advance, and outlays, and receipts, to show the amounts we were out of pocket by the transaction ; the means of making that com- putation I had a perfect record of, knowing how much I and McNeil had advanced ; if it had been presented in that form it would have been on the principle of return- ing to us the net balance of payments and liabilities over the receipts ; that plan was abandoned as an illegal method, and the authorities could not make a settle- ment on that basis ; do not recollect conferring with any on6 bnt Mr, Farlee on that subject. Q. After that was abandoned were you without a plan until Jones stepped into your office and suggested one ? A. We were still considering how we could best get an accurate' inventory of the property lost ; we had not hit on anything defi- nite, that I remember, until Jones made the suggestions ; I think it had not occur-, red to me ; it first came from him ; his suggestion only related to the carbines ;, so far as I remember, Jones did not give the figures ; he had no access to my ac- counts ; he was a man I had no confidence in ; a)l the advances do not appear in the cash-book ; during December and January, when I made advances of about $40,000, the cash-book shows only about S30,000, the balance having gone to pay Marston ; that should have gone in the books ; it enters into the sum stated as the amount paid Marston, but not entered into the sum claimed against the city for machinery, &c. ; Jones suggested the mode of charging the contract price of the guns, less the amount it would take to complete them ; that is the substance ; of my own knowledge I do not know that Mr. Jones had any interest in making this suggestion ; I do not tliink I asked him what advantage there would be in making up the claim in that way ; the plan he suggested struck me as a just and proper method ; that it would embrace not only the value of the articles, but the profits, if any, that were earned. Q. You say that mode would embrace all the profits as if the number of guns had been completed? (Objected to.) A. So far as those guns were concerned, it would, provided we had not allowed more than what was assumed to be the actual cost of completion ; there was 12^ per cent, allowed in excess of the actual cost of .corupjletion. /JJ 121 Q. That mode would include the materials in the guns, tlie labor spent on those materials, up to the stages to which they had gone — the royalty which would be payable on the guns, and the profits, if any, which' would come to the parties in- terested ? A. I think that is correct, so far as those guns are concerned, always abating 12^ per cent., which was allowed in excess of what was assumed to be the actual cost of finishing. ^ Q. What plan was there for selling out the property other than the carbines ? A. It was to make an inventory of the property itself, and the price was charged at the price it had cost the concern ; the plan did not include all the outlay ; it left out the current expenses of the establishment — rent, fuel, pay for Superintend- ent, clerk hire, &c. , and others that were not working on the particular contract ; it left out the tools that had been made and broken, or were foUnd inadequate, and others had to be made in their places ; Mr. Keene told me there were many parts of guns and small things which there were no means of ascertaining. Q Does the schedule profess to include any of the material that enters into the fabric of the guns? A. 1 think not ; I believe there is some steel. Q. Can you show in the cash-book or any other record of outlay for the purposes of this business and this factory, any sum for material, for tools and work, and labor on tools, and keeping up machinery, that is not in the schedule ? A. I have not particularly examined the cash-book, and cannot say what is there. Q. You have stated, I believe, on direct examination, that the cash-book con- tained a statement of all the outlay and all the receipts of cash in this business ? A. You misapprehend me ; I said the statement of profit and loss ccitains it all. Q. Will you point me to the entry in the cash-book which concerns or relates to the receipt of any money from the Government of the United States ? A. Here is one item on the Dr. side of cash-book, page 20 : '-Jane 29 — Cash Dr. to the United States G-overnment — received draft on Sul^-Treasury in New York, dcv^ed Washington, June 27, No. 264 — $15,379.50 ;" on the credit side, same page, is the entry : "" Cash Cr. by G. 0., loan amount, $15,379.50 ;" I would like to explain that. Q. What amount of outlay appears subsequent to July 13 ? A. The aggregate amount is over $6,000 or :|;7,000. Q. Can you state any greater difficulty in stating the material in the factory and the amount of labor that had been expended on this material in the unfinish- ed carbines, than in stating the amount necessary to complete them ? A. I cannot see any difficulty that would exist, greater in the one case than in the other. Q. You say you consider the principle on what the claim was made up just as fair against the city. Why would not giving the material in the factory and the labor expended on the unfinished carbines in the various stages, have been a pro- per mode? A. The armory had been in existence nineteen omnths ; was started for the exclusive purpose of producing Gibbs's breach-loading carbine ; all^the ex- penses for that time were made with a view of producing that result ; it required a large f>,mount of capital, employed in a hazardous business ; we had just arrived at the condition of producing the guns — were just ready to produce the article we de- signed when we started ; the time, money, labor, outlay, capital, ftnd hazard ex- pended during the nineteen months to produce the guns, was entitled to profit, if any were made, as far as we had gone ; it could not be expected that the manufac- turer who had changed the form of material from the raw to the finished article of utility, should forego whatever profit existed ; it would be entirely unjust ; we felt what we were entitled to was to replace the establishment in the position in which it was. Q. What was the difference between the result of this mode and that which you had rejected, except that this included profits as well as outlay ? A. That was the difference ; the one would be returning the capital simply — the other would em- brace the profits, if any were earned. Q. I understand you to have said that in this carbine account there is a compu- tation only for the 6,000 carbines, and not including any part of the 1,050 not de- livered. Will you show how there was omitted from the preceding schedule of machinery, tools, &c., which foots up $97,000, anything that went for the cost of machinery, tools, keeping up and replenishing tools, and cost of carrying on the 122 concern, that was applicable to the production of the 1,000 that -were delivered to the Government ? A. It is omitted from the claim against the city for the reason • that it had no business there ; it would be a fradulent claim to put it in. Q. (By the Court.) Here is $17,000 paid for keeping up tools ; can you state whether or not that did not include all the tools for making these guns delivered to the Government ; if it did nofc can you point out anything that was left out? A. I suppose that all the expenses on tools and machinery are not embraced in the $17,000 ; the equipment was by no means perfect .when we bought out MarstoUj if it had been we could have made guns immediately ; many tools were produced originally ; I suppose the machinery was competent to run for years, and the tools also, with the necessary repairs ; they were capable of making, say 100,000 guns, before they were worn out, so that 1,000 would involve 1-100 of their value ; I think the machinery was competent to make 300,000. Q. Now I want you to point out something in the shape of material. Or labor, or machines, or tools, that money was spent for in that factory that went to the 1,000 guns, and is not included in these schedules ? A.I cannot name an item there, for it has been destroyed ; I can only state that the items charged to the city were items that were put into the cost to the city, and that the items in the Govern- ment guns have nothing at all to do with them . Q. (By the Court.) I understand you to say that you are not able to state whether, in making up this account, there was any deduction made for the wear and tear of tools and machinery in making those guns ? A. That is the precise point ; my impression is that no deduction was made ; the question was whether a much higher price should not be charged on account of the increase in the value. Q. What was the whole amount of your advances up to the 13th of July, irre- spective of your liabilities for bills unsettled ? A. The amount ot the small pay- ments made after that date was about $3,000, which would leave $193,000, includ- ing interest. Q. So far as the cash-book contains your advances, was there any deduction ap- parent on account of the $12,615 due from the Government, and not received till September? A. I do not see any thing in the book now ; there could not have been, for the reason that it had not been received from the Government. . Q. The $15,000 received from the Government does not appear on both sides of the account, and is not so carried through, increasing one side as much as the other ? A. Certainly, it stands as every item received and paid out. Q. The result of the balance is the same as if it had not gone in at all ? A. A. Certainly ; it is self-evident. Q. If you had received $207,000 from the city, on how many guns would you have received the royalty ? A. My recollection is 6,000. Q. Why would not that in that case have belonged to Brooks ? A. There was one reason why we should have claimed in equity an abatement, and that is be- cause the progress of the work was arrested at a period when the result proved no real profit was made, and because if he had got the whole royalty it would have been a very considerable profit on his patent, while we would have been losers. Q. Suppose frou had delivered them to the Government, and had lost money, would not the money have belonged to Brooks ? A. It would, and I should have have claimed in equity some abatement, because he was incidentally interested in the factory, as every gun afforded him a profit . Q. Why did you carry the whole amount of the deduction to the royalty, and not divide it pro rata ? A. I have given you the reason ; we claimed an abatement because we felt that he should be a common sharer with us. Q. You carried to him all that was docked, and how much besides ? A. The whole abatement he made was $10,000 out of $26,000. Q. How much did you fail to receive from the city and Government less than what you paid out, as ultimately settled? A. The net profit to the proprietors was about,$2,400. Q. That does not include the $2,000 proceeds of the auction sale ? A. This statement embraces all the money that I received ; Mr. Farlee has stated what he did with that. Q. Did you examine this claim before it was presented ? A. I did not critically,, //4^ 123 because I should have had no knowledge of its details if I did ; I think it was shown to me. Q. Were you present at any examination of witnesses before the Board of Supervisors? A. I was not ; I heard that it was going on, but the manner and the matter I knew nothing about. Q. What were your relations with Mr. Williamson in 1861 and prior? A. I was acquainted with him during tlie Charter election in 1859, if not prior ; he was a political friend and supporter of mine ; our relations subsequent to 1861 have been less intimate and cordial for reasons he may know better than I do. Q. When did you become acquainted with McNeil ? A. He was introduced to me by Williamson, I think, during the Charter election of 1859, as an active mem- ber of the American party ; he seemed to be a very active supporter of me through the canvass ; in 1861 he still professed to be my supporter, politically, and he seemed to be very active ; I had learned at that time not to place any great confi- dence in him ; he often called on me, seldom at my house until after the gun mat- ter. Q. When did you become acquainted wiih Mr. Andrews? A. In 1859, I think ; he was my supporter in 1859 and 1861. Q. When did you become acquainted with Mr. Stanton? A. I knew him, po- litically, about the same time ; he and I belonged to what was called the radical wing of the party. Q. What did you do toward Mr Stanton's support ? A. I cannot remember pre- cisely what I did; while at Washington, I, in conjunction with other friends, pressed him to the favorable consideration of the President, either t hrough the Secretary of the Treasury or else upon both ; I do not remember any otber efforts of mine after that ; I canno* say whether I wrote letters on the subject, nor do I remember going on again to support him ; I may have urged him while there, but I have no recollection. Q. When during 1861 did plans'begin to belaid for your nomination ? A. My own recollection is that it was not till about the time of the State Convention, in October, that I consented to permit my name to go in ; many of my friends had urged me to let my name go into the canvass ; having been run and defeated in 1859, they felt that it was desirable to the party and to myself that I should con- sent to be a candidate again ; I never had any desire for the office, never wanted it, and it was with great reluctance that I consented to run either the first or the second time ; after receiving my nomination I withheld my acceptance for a considerable time — I think more than a week. Q. Did you take any active part in the distribution of offices in the Custom- house after Barney was appointed ? A. I took an active part in what I considered to be deserving appointments ; some of the applicants were not my friends, but were active, deserving members of the party. Q, Do you recollect a conversation concerning the appointment of Surveyor, in which you expressed the opinion that Mr. Chase would not make the appointment without conferring with you? A. I have no recollection of such a conversation; though I frequently saw McNeil— they can scarcely be called conferences ; I recol- lect Williamson being at my office that summer, as he had been at the prior can- A'ass several times, but the precise subject of conversation or conference I cannot remember, though I have canvassed the matter over and tried to remember; McNiel had a son a clerk in our store, and frequently came to see him. Q. When did you first inquire whether collections were made at the Custom- house in behalf of your election? A. I think not till after my nomination ; I may have seen Mr. Barney before, but I have no distinct recollection ; I knew some of my political friends had, and that they desired to have funds raised ; I think the first authoritative, distinct information I had on the subject of money being raised was from Messrs. Churchill and Cowdin. Q. Did they not go at your request to the ustom-house ? A. My own impres- sion is that they went there of their own volition, but their impression is other- wise ; you may assume it either way ; I think I expected aid from the Custom- housje from the time of my nomination, which was from ten to fourteen days before the election. , 124 Q. In July, 1861, how frequently did you see McNeil and Williamson ? A. I was out of the city a portion of the summer, and the occasions could not have been very frequent ; I thing they were both urgent that I should consent to be a candidate for mayor, and that the matter of patronage at the Custom-House was spoken of, as well as all subjects of political interest at that time ; I presume the subject of surveyorship was spoken of, if they called upon me before the appoint- ment was made ; I knew Andrews to be a capable and active man ; Mr. Dennison never participated very actively in politics ; Mr. Barney had to a considerable ex- tent. Q. Did you regard Mr. Barney as a managing politician ? (Objected to and excluded.) ' Q. You' were in Washington in July, 1863 ? A. According to my best recollec- tion, fortified by a note from Mr. Willard, I was not' ; I remember seeing Andrews there once, after he was Surveyor, at the office of the Secretary of the Treasury, during the winter ; I think he usually stops at Brown's Hotel ; I do not remem- ber seeing him there with Charles Cooper and McNeil ; my impression is pretty strong that I never saw McNeil in Washington at all ; he took some samples of blankets from our firm to sell at a stated price ; he went twice, I think ; how long he remained I do not know. Q. You say that you recollect nothing about Williamson's interview on the sub- ject of Andrews ? A. I recollect nothing about his saying it was satisfactory, and I do not believe it ever occurred, beca'hse he connects it with the declaration that I had employed him as agent to negotiate a bargain with Andrews— I to give my political influence toward his appointment, and to raise or cause to be raised from the Custom-House a sum of money for my elections-all of whicli is utterly un-^ grounded. Q. You consider the conversation between Williamson, yourself and McNeil on the question of contiibutions from the Custom-House through Andrews' appoint- ment as without foundation ? A. The essential portion of McNeil's testimony, on the matter of bargain, being absolutely and unqualifiedly untrue, I take it for granted that all the details and accompaniments are also untrue ; Williamson has only testified to a single interview on the subject ; he don't remember the words that he or I used ; he simply relates the substance ; now, if he meant to convey the idea that a bargain was consuriimated on the part of himself, McNeil, and Andrews, such as was stated, that is untrue. Q. Suppose he said that if Andrews was appointed you might rely on his sup- port, with ihe patronage and money of the Custom-House ? A. The matter of money, I am certain, was not referred to at all ; something may have been said about patronage either before or after Andrews' appointment, and his being a com- promise appointee — whether he would throw it in favor of the radical or conserva- tive wing of the party ; a day or two before election Williamson, McNeil, and others or the People's Union party became very restive because the money pro- mised was not forthcoming, so as to enable them to bring out their boxes and men at the election ; and I remember hearing Williamson express disappointment and I think unfriendly feelings towards Andrews. Q. Do you remember complaining to Williamson at your store that the Custom- House had only raised $7,000 ? A. No, I could not have claimed that because they raised more ; I may have said that the promise was to the committee of citizens $10,000 or $12,000 and it turned out only $9,500, involving therefore a larger expenditure on my part than I expected, but I have no distinct recollection of ever saying anything to him on the subject ; probably I would not remember it if I had ; it was an immaterial point. Q. Have you thought of any other contracts with the Government than those already stated by the witnesses in which you had an interest ? A. I have thought of none oth^. Q. Were you interested in contracts for arms from abroad ? A. Never. Q. What contracts were open in the name of yourself or your firm? A. We had two or three with Col. Vinton, one for infantry cloth and one for flannels, two or three for blankets, all open — those are all I now remember. Q. Did you become surety for any of the contracts that have been spoken of ? :^J" 125 A. I did in the contracts with Smith Brothers and Carbart, and also in many in which we had no interest . Q. What did you net on the sale of the 4,000 garments that were returned by the Government ? A. There were 16,000, of which some 3,500 were rejected ; I sold 100 of them at $3, and the balance at $2 50, less five per cent. ; our loss was about $7,000, and Smith's $4,500, making $11,500 ; I think there was a small profit on those accepted. Q. Did you ever declare during 1861. 1862, or 1863, that you had no connection with Government contracts ? (Objected to.) Mr. Field said the object was to get in the letter published in Th£ Albant/ Statesman . The Court allowed the question. A. I did so declare ; on the 25th of September, 1863, I declared. (Objected to.) Q. Did you so declare orally, subseqently ? A. I may have done so, because it would have been strictly true ; I never declared that I had had no interest in Gov- ernment contracts, but from that day to this I have had no interest in them. Q. Did you in September declare, "I have no Government con tracts,_ nor have I any business connection with the Government of any kind,, direct or indirect?" (Objected to, the writingTjeing the best evidence.) ■ Counsel for defendant offered to show that the witness had so stated, and also these words : "But you will be astonished at the mendacity of the charge when I inform you that those contracts, like the office of my son, exist only in Mr. Weed's imagination." (Objected to— /excluded — exception taken.) Q. Did you declare before the 25th of September, or on that day, or after that day, in the year 1863, to any person or persons, that you had no Government con- tracts or any business connected with the Government of any kind, direct or indi- rect, except in this letter ? A. I have no recollection of having made that decla- ration,; but I might have made it with entire truthfulness. Q. When did this Government contract for guns, in which you were interested, by its own terms, expire ? A. The period I cannot designate without having the contract before me ; but I believe, from reading the contract and from Mr. Farlee's assertions, that there was notliing obligatory on the part of the contractor to con- tinue the business, or to deliver a single gun, longer than he desired ; and imme- diately on the destruction of the factory I gave notice to Mr. Farlee that I would have no further connection with it. At the rate we were turning out guns (fifty a day) it would have taken about six months to complete the contract ; the money was paid on the average about 6 or 7 weeks after the delivery ; the last payment on clothing contracts was, I believe, as Mr. Carhart stated, in July or August, 1863. Q. You say if you had stated to people that you had no interest in Government contracts, it would have been true. In what respect would it have been true — that your contracts had ceased ? A. It would have been true in the present tense, as this letter was written. > Ee-direct. — The ledger which has been produced was brought to the Mayor's office after the claim against the city had been made out, and to my best recollec- tion after it had been settled, by a poor woman ; «he appeared confused, and un- willing to answer inquiries, from which I supposed some of the rioters had taken it. Q. If the $28,000 received from the Government had been put on the credit side of that account, would there not have been a debit of the guns themselves, as man- ufactured, to be delivered? A. Undoubtedly so; the two would have balanced- each other ; neither of them had any right in the claim against the city. Q. Was or was not the wear and tear of the machinery and tools in the construc- tion of the guns delivered to the Government actually included in the claim ? A. I have already stated, on cross-examination, that I know of no abatement that was made on account of the wear and tear ; but the first 550 guns delivered to the Government were charged at $3 each more than was charged to the city. Q. Was or not the n6,000 allowed to Brooks for royalty all profit ? _ A. He had invested nothing in the factory ; I do not know what the patent cost him. Plaintiff closed, reserving the right to produce a record sent for to Washington, under commission, if it arrived. 126 EGBERT C. HUTCHINS EECALLED. Robert C. Hutchins was recalled by the defendant — Q. Did you hear what Thomas C . Fields said to Mr. Blunt when the Farlee claim was presented ? A. I recollect Mr. Fields being present at the time ; he objected to the passage of the claim, and said he wanted some gun men examined; I cannot state the words — that was the language ; he was very emphatic about it ; he wanted some gun men ex- amined. Oross-examined — ^This was at the meeting of the Committse at which the claim was considered and passed upon ; I have given Mr. Fields' language as far as I can ; Mr. Blunt was at the table,— and other members ; I can't say what the others said ; I think Mr. Blunt said something. ANDREW BLAKELEY CALLED. Andkew Blakelet, a resident of thi» city for 54 years, a politician for 30 years, belonging to the Union party, and formerly a Republican, was called to prove that there was never an instance, previous to Mayor Opdyke's election, in which the Custom-house had been assessed for a mayoralty election. (Objected to and excluded.) GEORGE W. QUINTARD CALLED. Geoege W. Quintard called by defendant— Have lived in New Tork twenty-five years ; am proprietor of the Morgan Iron Works ; have known Henry D. Stover seven or eight years ; have always heard him well spoken of ; I would believe him under oath. Cross-examined — Have had no dealings with Mr. Stover for four or five years ; have heard he was confined in Port Lafayette ; have heard one person say he was a man of bad moral character ; can't say I ever heard any one talk about his charac- ter for truth. REV. AARON H. BURLINGHAM, D.D., CALLED. The Rev. Aaron H. Burlingham, D.D., Minister of the South Baptist Church in Twenty-fifth street, was called to support H. D. Stover's character. He stated that he had a pew in his church for two years, and had the reputation of a good charac- ter ; would believehim under oath. Gross- examined —Is he a constant attendant at your church? A. Well, I think he might be more faithful. [Laughter.] Q. Is he not a very backsliding member of your congregation ? A . No, I should not style him so. Q. You have worse in your congregation ? A. The counsel will remember that I live in New York . [Laughter.] Q. Have you never heard anything against Mr. Stover's character ? A. No, sir ; have heard he was in Fort Lafayette ; have heard it wascoanected with Govern- ment contracts ; never heard his character spoken against, except in relation to this Government business. HEZEKIAH J. MONROE CALLED. Hezekiah J. Monroe, of Staten Island, stated he had been acquainted with Mr. Stover about six years ; as far as he had heard, his reputation was good ; would believe him under oath. GEORGE W. WALGROVE CALLED. George W. Walgrovb, of No. 17 Suffolk street, clothier, called on the same sub- ject, knew little more of Mr. Stover than that he had made his clothes and he paid for them. Mr. Field — It is suggested that this gentleman having made his clothes, knows his habits. (In which flash of wit and the laughter it occasioned, the witness re- tired, and the testimony closed). Adjourned to 10 o'clock to-morrow. /S<^ 121 SIXTEENTH DAY. THDESDAY, JANUARY 5TH, 1865. ARGUMENT OF COUNSEL— MR. PIERREPONT FOR DEFENDANT. t Mr. Pierhepont^ in opening his remarks, paid a tribute to the Court and Jury ; a Court so jmtient, so even-handed in its justice, so able and ready in the disposition of every legal question, invites our sincerest admiration ; and a Jury so unwearied in attention, so prompt, so apparently desirous to learn what was the honest truth of the case, I have never seei^ equaled. It is with sorrow that any right-minded man feels himself compelled to prosecute his fellow man for crime of any kind, but there comes a time in the life of every man, when he must choose between being a coward for his ease or a brave man for the right, when duty becomes a cross, then is the test of true courage manliness. That cross is increased when it brings a man in conflict with those against whom he has no feeling of ill-will. This controversy is the culminatior; of a fend of somewhat ancient date. It is a family quarrel, and like most family quarrels, very bitter. I have no part in that ; I belong to a different political organization — one that has its own quarrels bitter enough you may be sure, but one in which when an individual gets worsted in 'a conflict with another, he bears it like a man, and does not run whining to a court for a salve in the shape of damages to cure his wounded reputation. As you have seen from the evidence quoted from the libels themselves, as well as from other evidence in the case, Mr. Weed was the party upon whom the attack was first made. He was assailed as "the father of the lobby," the "corrupter of public morals," the " contriver of various corrupt schemes," a " coarse fellow," as engaged in the fraudulent charter of the steamer Cataline ; all which and much more was reiterated in the public newspapers — bark- ing and snapping continually, imtil Old Tliurlow turns, and with one snap of his whip sends his assailant whining to a court of justice, in search of a greenback plaster to cover his smarting wounds. Is that a manly way in which to act when worsted in a political feud ? But this cause involves a higher question, a question of public morality, a ques- tion of political responsibility : Whether the corruptions of men in office can be exposed ; the freedom of the press — the greatest question that ever came before the world — whether our free institutions shall continue, or corruption shall destroy them, and liberty perish forever off the face of the earth. This, gentlemen, is a time of civil war, and do you suppose there can be a great civil war which will not shake the great foundations of the nation ? The war on battle-fields will in a few months be over, but the war of ideas has just begun ; and when the bells shall ring in the joyful news of peace, beware lest they ring in a peace without liberty. The charge which the Court will give you, will be of more moment than the order any Major-General has issued, and your verdict will be vaster in its consequence than the issue of any battle. The instinct of the people tells them so ; and even the march of Sherman and the attack on Wilmington were not able to avert the attention of the people from this issue . It has even excited the attention of the religious community, so much so that it has been spoken of in the churches. (The counsel was about to read a report of some pulpit remarks, when Mr. Field interposed, and it was ruled out as irregular.) Gentlemen, the counsel for the plaintiff has stated in your presence that The World newspaper was sued for the same libel, and the damages are laid at $50,000, the same sum as Mr. Weed is sued for, so that, if successful, Mr. Opdyke will make money by these suits almost as fast as out of his secret contracts with the Govern- ment, or out of Mariposa stock, or out of his fraudulent gun claim on the city. In Mariposa it is shown that he did not invest a dollar, and he has made $800,000 or $900,000. Now sane men do not act without motive. Perhaps personal feelings had some- thing to do with it ; but the great motive for this suit was the love of money. If not for the sake of money, why drag Mr. Weed into a civil court, instead of having him punished in a criminal court ? Let these suits prevail, and tell me how much. 128 of civii liberty the people have left. No man can longer speak but in cautious whispers of the corruptions of a man in office ; no newspaper dare expose a word of it ; the press is muffled ; the voice of truth is hushed ; corruption and f i aud hold up the terror of the Court against any man who shall expose them ; justice and liberty have left America for cheats and scoundrels to revel in. Counsel went into a consideration of the wrongs often unavoidably committed on the liberty of individuals in a time of civil war, citing the example of Henry D. Stover, confined in Fort Lafayette for five months, and he says, on a charge trumped up at the instigation of some contractors for the Navy in Boston, with whom he had interfered ; a charge which the Government was now convinced was unfound- ed, and was doing all it could to repair the injury committed ; also, the case of Mr. Henderson, Navy Agent of New York, whom he spoke of as a man of high reli- gious character, one of the most moral, devout, and best men that ever lived, who was a close purchaser for the Government, and having refused to go into open con- tracts with a party to enable him to make more money out of the Government, he received notice that if he did not pay S20,000 at such a time and such a place, he would be prosecuted. He was prosecuted and indicted ; and Mr. Weed, like other citizens, supposing he was guilty, mentioned his name in the articles containing the alleged libel. Having on this trial discovered his error, he would do all he could to repair the great wrong done Mr. Henderson. This, continued the counsel, is a time of civil war. The tree of liberty is not growing very vigorously just now. Give a verdict which will muzzle the press, and you will find next year it is dead. You may water it with your tears, but it will not survive. This is a public question. Is it not right to expose the frauds of men in public places ? K it is right to expose them, then it is wrong that Mr. Weed should be pun- ished for exposing them. He ought to have a monument rather. The only tribu- nal before whom such offenders can be brought is that of public opinion ; aud the only instrument we can use is the public press. Will you destroy that ? You may not agree with Mr. Weed in politics. But go where Thurlow Weed has lived, talk with all classes of people, from the poor woman in the market-place to the rich, man in his mansion, with his warmest political friends and his most bitter foes, each and all will tell you that there never has lived on this continent a man who has relieved more humble people in their necessity, who has sympatliized more with' men in their sorrow, who has done more unselfish acts of kindness to his fellows. He has been the -maker of Governors, of Senators, of Ministers of State, of Presi- dents. He has held great power. He might have amasse^l great wealth, and yet he has lived all his life long in the most simple, frugal way. The only luxury in which he has ever indulged, is that of spending money freely toward relieving the wants of the poor, for whom his heart has always warmed in sympathy. I speak what all men know. When he dies his funeral will be followed by numberless friends ; the grass on his grave will long keep green, watered by the tears of grate- ful hearts. He has exposed the wrongs of Mr. Opdyke while in office. Will you find him guilty for it ? If so, you tan crucify your own best friends. When Mr. Weed returned from Europe, where, together with Archbishop Hughes, he had rendered the country great service, the freedom of the city was voted him. When this trial is over the freedom of the city will be voted him again, and George Op- dyke will not veto that resolution. The question has been asked a thousand times, How dare Mr. Opdyke bring this suit? Why, the evidence was all his own, in his own possession ; the witnesses we had to call were in his interest ; Mr. Blunt was his friend : he did not believe the thing could be proved ; and it is a miracle that they have been proved, and more than proved. He did not think he ran any risk. But when a man is engaged in a fraud he always runs a risk, and sooner or later it will be revealed. Now I call your attention to the first part of the article, com- plained of as libelous : "Mr. Opdyke may enlarge the field of inquiry and look into this alleged sale of the Surveyorship of the port of New York." Suppose there was no truth in this statement, taken in connection with what precedes, ought there to have been a suit about it. But it is true in substance and in fact ; and if one of the parties did cheat a little by keeping back part of the price, it does not alter the fafit of the sale. When this suit was brought, gentlemen, the plaintiff /<; 129 must have had in mind the old saying : ' ' The greater the truth the greater the libel." But his friend Orison Blunt, who is a lawyer, should have informed him better, that there has been a change in the law, that the old adage does not pre- vail, and that when a man has proved the truth of the libel he is protected. Coun- sel went into a review of the testimony on this point. Could it be believed that McNiel, who had been a member of the Legislature, had been engaged in political life,, and a friend of Mr Opdyke, had concocted all the story which he related ? As a counterfeit bill was detected by its appearance, so could a jury tell by the man- ner of a witness on the stand whether he was telling the truth. McNiel was the friend of Mr. Opdyke, and desired his election as Mayor. Mr. Andrews was also his friend, and himself was looking for the Surveyorship. What more ntitural than that he should go to McNeil and tell him he wanted Opdyke's influence ; that he wanted him to drop Stanton and support him. McNeil says: "How will it be to Mr. Opdyke's interest ?" Andrews replies : "I will hav« $10,000 collected in the Custom-house to help his election as Mayor." McNeil reports this to Opdyke next day. Opdyke seems contented with it, but says, " Will he not cheat you ?" "I think not," says McNeil, "but pick your man, and we will go and meet him and have the think fixed." Says Opdyke, *' Suppose you take Amor J. Williamson ?" Agreed. Next day they see Andrews ; make an appointment in an eating-house on the 6th July, in a private room, where Andrews says there was a " spread." The bargain is there made. Both McNeil and Williamson tell you the same thing, that when they sat down McNeil says, "Well, Andrews, let us go to busi- ness." That Andrews entered into the arrangement. When leaving McNeil says to Williamson, "Are you satisfied?" he being Opdyke's picked man. He says he is satisfied. That this went to Opdyke, who expressed himself satisfied. Do you think they have both contrived this story ? Andrews, after he gets the office, thanks McNeil and Williamson both for aiding him. Had Williamson and McNeil any motive to be filse in this narration ? You cannot conceive of any. Go to the Custom-house and see what they do to carry out that bargain. Mr. Barney says he never heard of any money being raised in the Custom-house on a Mayoralty elec- tion before this. No one ever did. Federal officers do not hold under the Mayor ; why was this assessment mac^e ? It was made to carrj^ out the arrangement be- tween Andrews and Opdyke. Barney tells you he was opposed to the whole thing. He had no knowledge of this secret contract between Andrews and Opdyke to as- sess the Custom-house for $10,000. And what kind of a thing was that for George Opdyke, a man of great wealth, to enter into ? To get $10,000 out of the poor laboring clerks of the Custom-house ; to do what f To malco him Mayor of the city of New York. In heaven's name, if he wanted to be Mayor of the city, why not pay the expenses out of his own money — money got out of the Government and his vast trade ? You are told it was ail voluntary. Of course, it was very ■"voluntary." A circular issued by the head of the department. Ah, if any of you were a clerk in the Custom-house, you would find out what a voluntary sub- scription means. If it is not responded to, it will not be long before you receive a " voluntary" note stating " voluntarily " that your services will be no longer re- quired. Yes, Mr. Opdylte may enlarge the field of inquiry, so as to embrace the alleged Bale of the office of Surveyor of the Port of New York. We have made a brief examination of it, and find it pretty satisfactory . Counsel reviewed the testimony of Mr. Andrews himself, as on close inspection tending to show the truth of the matter he sought to deny. The next libel was in relation to the Mariposa estate — that Opdyke, Ketchum, and Hoey obtained $2,400,000. The fact proved was that they received $2,600,000. No one of them but Opdyke had sued for libel. When Gen. Fremont was asked whether any advantage was taken of him, his answer was, "Any unfair advan- tage ? I (hesitating) think not." The business was urgent, the pressure was great, and, he wisely took his hand out of the lion's mouth. Gr.n. Fremont was willing to give two and a half millions to adjust difficulties, and Opdyke and the other gentle- men got each $800,000 or $900,000 for nothing. Gen . Fremont was required to give, in addition to his first agreement, $700,000, out of which Mr. Fields got his coun- 9 'iV^ V 130 Bel fees, and then to give a proxy for a large amount of his own stock, and at last to sell 500 shares at $25 a share, when it was worth about double in the mar- ket. Then Fremont commenced an action about $180,000 worth of bonds, which he afterwards adjusted. The next libel was in regard to secret partnerships. It was proved that be made $172,000 out of one batch in a very few months. Wil- liam Churchill sold to Opdyke three distinct contracts with the Government for clothing, for which Opdyke paid him 12 J cents per coat. Churchill could not get the goods except of Opdyke. Mr. Spaulding sold Opdyke a quantity of cloth which was so bad, as the plaintiff claimed, that it would not take an indigo blue dye ; but somehow or other they did work it in. Then there was the contract with the stale for military clothing. Mr. Carhart produced a list of contracts in his own name, amounting to $4,600,000, in which Opdyke was interested, and at the same time surety, making as his share $172,000. In Sept., 1863, Opdyke says it was true that he had no contracts— in the present tense. But when a man states, "equally ungrounded is the charge that I have any interest in Government contracts ; I have none, direct or indirect, and they exist only in Mr Weed's imagination," do you not understand that he means I have had no contracts 1 In regard to the guns, if there was a fraud in presenting the claim, it was to be laid to the Mayor of the city in 1863. It was hoped that a wealthy Mayor would be proof against corruption. But we find him secretly interested in contracts. Instead of guarding the city treasury, he took money illegally from the cityand pocketed it. Opdyke went into a contract for making guns, a hazardous business, with which he was entirely unacquainted. Marston, who is making them, requires more and more ' money, until Opdyke advances $65,000. Then Opdyke buys out the establishment in the name of Farlee. He was then willing to get out of the business at a loss of $10,000 or $20,000. 4-t length his advances amounted to $185,000, when he said he would be willing to sell out at a loss of $25,000 or $30,000. Then came the destruction of the armory. A great effort had been made to show that Opdyke did not connive at the destruction of his establishment. No such charge had been made in the opening. The only thing that he (Mr. Pierrepont) said was that when it was found that the factory was going to be destroyed, the plaintiff felt very quiet about it, knowing that the city would have to pay for it, and that his ruinously- losing and bankrupt concern would be better paid for by the city. Now, all an insurance company would have to pay would be the actual value of the property destroyed ; not any prospective profit. While Opdyke was thinking how to make up his claim, Loren Jones came in and suggested to charge the contract price, less the cost of finishing the guns ; that would protect the patentees and all. Opdyke had been thinking that he might claim what he had paid out, but he says he thought ^that would be highly illegal, so he adopts the suggestion of |Jones, by which he gets all he put in, with all the prospective profit besides. That would not be illegal ! Now Jones swears that he could duplicate all the machinery for §40,000, thus showing an overcharge of $63,000. The cash-book showed that Jones had told the truth in regard to the matter. Only $15,000 had been received from the Government until the 11th of September, so that the balance of the $28,000 was kept out. The $15,000 balances itself in the book. In making up the account they had to estimate the value of the materials for unfinished guns ; the value of the different parts of the guns was proved accurately on this trial ; now if they had put in an accurate account of the materials destroyed, it would have reduced the claim $63,000. Supervisor Blunt, who had dismissed riot claims with a five minutes' hearing, takes up the claim of Opdyke into his own choice keeping, and in a few days he is nominated for Mayor in Opdyke's place. Mr. Fields, on behalf of the Corporation, was not allowed to cross-examine witnesses or hear the testimony. Supervisor Purdy resigned the very day the claim was passed. Counsel reviewed the testimony of Mr. Farlee before the Supervisors, in which he stated that the articles were charged at the prices they cost to make them, and pointed out several discrepancies in the items as compared with the inventory ; among others $3,000 for the model gun, which cost only $500. Farlee had confessed himself in error in his former testimony. He denies that he swore that he was " the entire owner of the claim," and says he presented the bill of sale and stated to Mr. Blunt that it was not pertinent to inquire into the relation of other parties. Mr. Blunt X^S^ 131 knew they had been making some guns, and he thought they ought to be credited ; so when we asked him, " Was anything said about $28,000 havina; been received back from the Government of the United States ?" he answered thus : " I asked that question distinctly and it was stated that there had not been any, inasmuch as no guns had been delivered ; that the guns were ready to be delivered but had not been receipted for." And it turned out that they had received $28,000 at that time. Mr. Blunt swears that he never heard one word about the claim being got up in the mode in which the other side now insist it was. Counsel referred to the testimony of Mr. Keene before the Supervisors, to show that the present theory wag not there exhibited. The theory had been changed, and when Opdyke had got all his costs and profits from the city he refused to pay over the royalty to Mr. Brooks, because he says, '• if we lost, he should lose also." Upon that principle, if he had bought cloth of Spaulding and made up clothing, and from any cause the cloth had become injured, he should make Spaulding lose ; or, if he had borrowed money to go into business, and had been unsuccessful, the lender ought to lose a part of his money. The great question for the jury to decide was, whether a man who, in office,' had been undertaking to get, by indirection and by means which the law regards as fraudulent, out of the city, money, when he himself was its trustee and guardian. If the jury should say that that was right, then corruption had over- ridden justice, fraud triumphed over honesty, and the day of our destruction was near. If these things could not be exposed, then our liberties were gone. Mr. Opdyke sat in the Board of Supervisors while Mr, Waterman's claim was acted upon — then made a great show of honesty when his own claim came up, all the time knowing the fraudulent system upon which it was made out. Mr. Fields took Mr. Purdy aside and said, "This is too indelicate for Opdyke to remain." Purdy then makes a suggestion to Opdyke, and he leaves the room. Gentlemen, the responsibility that rests upon you is the gravest that has been cast upon you in a lifetime. All I ask is that you shall do your duty in a way that when you go out from here you may feel that you have done right, and may ba able to tell your fellow-citizens why it is right. MR. EMOTT FOR THE PLAINTIFF. Me. Emott, in addressing the jury for the plaintiff, said he was hound to ad- vert to the manifesto with which the defense began, and contrast the promise with the performance. He had heard that a certain learned counselor of this court, who being applied to by a deputation of citizens for advice as to how to vote, recommended that they should ask for divine guidance on their knees in their closets. He feared if the counsel who opened for the defense hh,d made any such preparation for his opening, there must have squatted close by his ear a tempter in the form of T. W. That opening was marked by the same vindictive malice that dictated these libels — it was even more outrageous. The counsel had spoken of this as the beginning of a revolution. Who was to be the Robespierre, the Marat, the Danton ? The intended victims he supposed were Messrs. Opdyke, Ketchum, Hoey, Field, Godwin and Gree- ley. Mr. Weed struck at these men because he hated them ; they were in his way. How many would follow the defendant in a crusade against political profligacy and legislative and municipal corruption ! You might as well expect to see T. G. Fields preaching sobriety and good order in legislative bodies. The speaker would not follow the example set by the defendant's counsel and resort to personal abuse. Mr. Weed's character was not on trial. But he would say this : that the community would hardly select such a man to make war upon what his counsel had affected to denounce ; they would first demand that he should clear himself of imputations which in the common speech of men make him the very type of the character which he has so boldly attempted and so miserably failed to fix upon this plaintiff. Mr. Weed had sought to thrust his personal animosities into great public questions, and had used the leading papers of the State to gratify personal spleen The counsel in his opening had alluded to the manner of the plaintiff's counsel in open- ing the case, as being characterized with a want of earnestness. If he (Mr. Em- ott) had appeared to exhibit any lack of earnestness and conviction, it was his 13ii own fault and not that of his client. It was better to coinmit that fault than to make an exhibition of forensic ground and lofty tumbling. It must be a miserable cause which compelled a lawyer and a gentleman to descead so far as to repeat the slang of such a man as Charles McNeil, to say that Mr. Opdyke had spumed the ladder by which he had climbed from the lowest walks of life. ISTo man before the defendant had ever dared to blacken the name of G-eorge Opdyke. The defen- dant knew that Mr. Opdyke had risen by energy, capacity and integrity to wealth and public respect. Where did we find the representatives of the class from which the gentleman's client sprung ? Were they the creatures of the legislative lobby and the municipal halls who had been thronging this court during the trial, coming day by day to serve their master ? " Where the carcass is there the vultures are gathered together. " The plaintiff had been charged with motives of av^arice iri this prosecution. Every successful, thrifty man is called avaricious. But did any one ever hear of a man bringing a libel suit against Thurlow Weed for love of money ? The largest verdict would not more than compensate him for the expense, labor and loss of time involved in such a suit. It is idle to talk of avaricious motives in such a suit to reasonable men, as idle to quote Samuel Eogers on the execution of young women in 1790, or De Tocqueville on Louis Philippe. Mr. Opdyke comes here to the Bar of public justice to vindicate his character. He may thank God that he has done it completely ; and I know that for that object he will cheerfully pay all that the duty has cost in money, as he has patiently borne all it has brought of renewed insult, and that he will not touch one dollar of the largest verdict you can give him. He does not need Mr. Weed's money ; there ai-e Charities in this city that do. Mr. Opdyke knew the Avary, untiring, unscrupulous antagonist with whom he luust grapple. He knew the facts -just what he had done and designed —the men he dealt \nth. — the whole ease. r>o you think he would have come here, invited these men to spread the map of his whole life before you, if he had not knoT/n that he had nothing to fear from the truth, and that a jury conld not be made to believe a lie ? The defendant complains that he is not indicted. It is a strange complaint; from him. If he had been on trial as a criminal he would long since have been convicted, for the issue now is not whether this is a libel and a false libel, but how much shall the libeler pay for uttering it We choose to submit that to you and not to leave it to the Court, as it would have been left on a criminal prosecution. The gentlemen on the other side, in their hearts, do not complain of this. Their hope, their purpose it to prevail on you to give a small verdict for a few hundred or a few thousand dollars, and to use that to blast the man they defame and hate. They look for a small verdict to say that George Opdyke's character is worth nothing. That is what they call mitigation. We ask for a verdict that shall for- ever close their mouths. Let there be no trickery of getting a small verdict on one ground and using it for another. But this is not all the difference to the parties between this and a trial in the Criminal Court. There Mr. Weed would stand with his mouth closed. He could not testify. The plaintiff has always intended to be himself a witness, and he offered the same privilege to his adversary. Mr. Weed could have told you on oath, how pure and free from malice his motives were, how nothing but public duty impelled him. He could have testified to the efforts which he made to get at the truth and the information which led him to believe Opdyke so bad. He has declined to attempt it. If he could not do it, it is not our flxult, but his, and that of his cause. You will see the fairness, however, of bidding his counsel complain of it. The counsel dragged in and read to you a letter of Mr, Opdyke, addressed to Senator Harris. I pass over the manner in which that letter was introduced to you, under the apology which has been made for it. But why was it use'd at all ? It is on its face a reply to a previous attack — a newspaper attack. The senior coun- sel calls his client and mine newspaper pugilists. There is not a particle of evi- dence connecting Mr. Opdyke with such a charge, and I will not permit the coun- sel to give that name to his client. He is not an editor. He did not publish these things to give notoriety to a newspaper, to enliven a political campaign, or to gratify the morbid public craving for slander. It was not in the heat of politi- cal feuds, or in discharge of what editors sometimes call their duty. He went deliberately and of malice, as any other man might, and borrowed Mf 133 column after column of this newspaper, to serve his malicious purposes. But ■what is the libel ? It is, first, that the plaintiff had made money out of Govern- ment contracts corruptly and dishonestly. Counsel proceeded to state the vari- ous libels, and his view of ttffe law in regard to them. The rule required the justification to be complete as to all the charges. The Court stated that he coincided with that view. He was inclined to think, " in regard to the charge of making money out of Government contracts, that in some stages of society it might not be libelous, and theretore it was a question for the jury to determine whether it was. Mr. Emott claimed that tlie defendant having admitted in his answer both the publication and the meaning of the articles, he was precluded from contro- verting the sense as much as the publication. The Couet — That would hardly be admitted by innuendo. Mr. Emott cited several authorities for the law on the subject of libel, and among them the case of Weed agt. Foster, in which the libel was, "paying $5,000 for receiving the appointment of Inspector of Port by Governor Seward." A demurrer was put in, and Judge Harris (now Senator) held it was libelous. The defendant sought to justify by proving that McNeil and Gibbs said there was a swindle. If a man should print that Smith said that Jones was a thief, could he justify by bringing out Smith and making him swear that he did do so. The fact and not the statement must be proved. The defendant's counsel made numerous statements in the opening which the evidence failed to sustain. William Churchill was asked if Opdyke had forestalled the market, as charged by the counsel, and he denied it. So with the charge of dyeing cloth so that it washed out and faded. Mr. Spaulding swears that the goods he sold Opdyke were the best of the kind, and he recommended a dyer, and Opdyke swears that there were no defects in the goods made from the cloth. They were improperly dyed, which was not the plaintiff's fault, but the spotted parts were not made up into garments, as Smith testified. In consequence of making more garments than the contract called for, some 3,500 were rejected. It was said that Opdyke made $172,000 out of the Carhart contracts. The proof was that the firm made that amount out of some $4,800,000 worth of contracts, one-third of -which pro- fits belonged to the plaintiff, and no profit at all would have been made but for holding on to the Government vouchers and certificates. The charge of secrecy was absurd. Was there anything discreditable or dishonorable in the Carhart con- tracts? In answer to the libel with regard to "shoddy blankets," the answer alleges that it was not only blankets but clothing or coats that were referred to — an aggravation of the libel. Now the witness Bacon testified that there were no shoddy blankets known, and no blankets rejected in New York except a few which were always thrown out in every contract. There was an utter failure to justify this charge of the libel. There was no evidence of any unfair dealings on the part of the plaintiff. The libel in regard to the gun contract was, first, that there was a swindle in it. Counsel would show that less was claimed than was legally due from the city. A base and cowardly attempt was made to impute to the plaintiff connivance at the destruction of the armory. It was left to counsel with less re- sponsibility and more boldness, not to say effrontery, to do that, and he could not escape from it by any apology. The counsel sought to make it appear that the armory was a losing concern, and that Opdyke was willing to sell out at a great loss. Such was not the case after Keene had taken hold of the factory. It was then an entire success, and the arms that they were making were such as they had good reason to believe would be in request for other uses than that of the Govern- ment. The gentleman stated that the policemen were withdrawn from the armory, and immediately thereafter the Mayor could not be found until he was followed to the St. Nicholas Hotel. Counsel here read a passage from Mr. Pierrepont's opening, and said that either the witnesses had lied in their statements to Mr. P., or Mr. r. had misstated what they told him. The policemen were not withdrawn, hut were driven out, their lives being in jeopardy. There was no dispute that Opdyke had invested in the armory $185,000, McNeil $7,000, and that there was some $25,000 of liabilities. The claim submitted to the Board of Supervisors was intended to give the value of the property. The fraud was either in the principle 134 adopted on the basis of tte claim, or the amourit, or the application of the princi- ple, or the mode of getting the claim through. Now Supervisor Blunt had a name proverbial for integrity and energy. The minutes of the testimony were very im- perfect. Farlee had shown that they were wrong *in several particulars — one in regard to a lathe, showing that the minute-taker rather than Farlee was the person to be convicted of misstatement. The witnesses say that the principle upon which it was made out was distinctly presented to the Board, and no man could hardly fail of understanding it. Even the minutes contain the fact that the contract price ■was settled to be the basis of the value of the gims. The machinery was purchased at a fair price, unless there was cheating on the part of the appraisers. The coun- Bel had exhibited here such parts of the gun as suited their purpose. Were we bound, in estimating the value of property in a factory, to reduce it to the bare value of the fragments ? At what stage do we get from the value of the finished gun to the value of the parts ? Suppose they had been all finished but the butt- plate, would they be worth nothing but the cost of the separate pieces ? The ques- ion was, whether the plaintiff had a right to charge their cost on their value. If he charged the cost, then $22 was too much for the finished guns ; that was not their value in the open market. A great deal had been said about prospective profits. The courts, in speaking of that, refer to future contingent profits of pros- pective undertakings. That was what the courts condemned. Counsel contended that, by reason of a riot, the city was not merely in the place of an insurer, but was put in the place of the party who destroyed the build- ing, and the sufferer could recover whatever damage he had suffered, including the profits that would have been made, had the contract been completed. (Philadelphia and Wilmington Railroad case^lS How. 307 ; White agt. Mose- by, 8 Pickering, 356 ; 7 Gushing, 516 ; 3 Duer, 406.) Mr. Opdyke then had a right to claim against the city the full price he would have received from the Government, less the expense it would take to complete the guns. Had he stood on his rights, and continued the action commenced against the city, he could have recovered the whole amount, on the construction of the law — that whatever the rioters would have been bound to pay, if sued, and responsi- ble, the city had a right to pay. Great fault was found with the cash-book, for what reason he could not see. It showed the facts, and all the facts, that were at the time the entries were made. The plaintiff could have left this gun claim upon the statement of the witnesses as to their proper motives ; upon the fact that no profit had been made out of the city. It was enough to satisfy the jury Mr. Op- dyke honestly believed he was entitled to the amount claimed. As to the pro- ceedings before the committee, it had been attempted to prove that there was some- thing wrong in passing upon the claim, because Mr. Thomas C. Fields was not con- sulted, and had no opportunity of examining witnesses. Well, the jury would probably be able to estimate what value the services of Mr. Thomas C. Fields would have been to the committee, and come to the same conclusion that Mr. Blunt had. The next charge in the libel was that the son-in-law of Mr. Opdyke made a claim for the destruction of the gun factory ; that Mr. Opdyke, by virtue of his office, was a member of the committee before whom the claim was made ; that he dis- claimed (to the committee) any interest in that claim ; investigated the claim, and at an early day received a check, and this they urged was not libelous. Now there - was not only no proof that Mr. Opdyke disclaimed his interest, but it was not even concealed. All over the city it was known as Opdyke' s gun factory. Every one knew he had an interest in it, although not its extent or character. It was as\well known as that Weed had an interest in the Evening Journal, or that Horace Gree- ley was editor of the Tribune. Mr. Opdyke was not a memlaer of the committee. He did not take any part in the passage of the claim, but, on the contrary, retired. Next came the charge that Mr. Opdyke had sold the office of Surveyor of the Port of New York for $10,000. He would not stop to ask if this was libel- ous. The principal witness to justify this libel was Mr. McNeil, who was held up as a member of the Legislature and therefore to be believed. Well, perhaps some people might not consider that such a high recommendation. Much had taken place in the Legislature of this State that did not prove the members immaculate. It had been suggested, indeed, that perhaps if this suit could be kept going for the ^^^ 135 whole winter, the legislation this session might be improved. The story of McNeil was absurd on its face. Did any one suppose that if Mr. Opdyke and Mr. Andrews wished to enter into the bargain alleged, they would have got McNeil to make it and send Amor J. Williamson as a witness ? Was that the way polit'cians man bargains they were ashamed of to call in two witnesses. Did any one suppose Thurlow Weed ever made a bargain in that way ? But the testimony was full and explicit that Mr. Opdyke had nothing to do with the appointment of Mr. Andrews — had not urged it or aided it in any way. Counsel then came to consider the libelous charge against the plaintiff in rela- tion to the Mariposa stock, that Mr. Opdyke and others had reminded General Fre- mont that when running for a candidate in 1856, he was weakened by pecuniary embarrassments, pressed him to put his aif lirs in better shape, and in training Gen, Fremont for the Presidential canvass his grooms received the gratuity of $2,600,000. Now Gen. Fremont showed himself on the stand to be one who fully and clearly understood his own interests, so much so as to elicit a well- deserved tribute from the counsel for the defendant . He had shown that the Mariposa property was so hampered with debts and diflSculties, that the best offer he could get prior to this arrangement with Messrs. Ketchum, Opdyke & Hoey was to settle the claim against it for one-half the property. Under the urgent pressure of claims against the property Gen, Fremont made the arrangement with these gentlemen to have the debts paid for one-quarter of the estates. He had explicitly denied any exaction or extortion on the part of these gentlemen ; said that he was more anxious to perfect, the arrangement than they were ; that he saw he must either close the bargain or the estate would all be lost. Here was no pressure, no playing upon his presidential aspirations. Mr. Opdyke had such doubt of the profitableness of the arrangement that he refused to receive the whole of the share allotted to him. It being now 5 o'clock the Court adjourned till to-morrow, when Mr. Emott will be allowed fifteen minutes on the question of damages, to be followed by Mr, Evarts and Mr. Field. SEVENTEENTH DAY. FRIDAY, JANUARY 6TH, 1865. M*R. EMOTT FOR PLAINTIFF (CONTINUED). At the opening of the Court, Mr. Emott resumed his argument in relation to the alleged fraud in the omission of the $28,000 received from the Government. There was not the shghtest evidence to support the allegation. Mr. Farlee did not exhibit to the Board of Supervisors the statement of profit or loss which he had given in evidence on this trial, but he was examined on the subject by Mr. Blunt, and stated the result to which that calculation led him, and in that calculation he was compelled to take into account the $28,000. The item of 115,000 that appeared in the cash-book was balanced, and it had nothing to do with the claim, which was for machinery, tools, and material. In I'egard to damages, counsel insisted that a small verdict at the end of such a trial and against such a libel would be a repetition of the slander. Counsel then cited authorities on the law of libel, and closed by submitting numerous requests to charge, the last of which was that the reiteration of the charges in the coub- eel's opening were also evidences of maUce to be submitted to the jury. MR. EVARTS FOR DEPENDANT. Mr. Evakts followed on behalf of the defendant. He said that much of the time on this trial had been occupied in overthrowing charges and difiSculties which were not made and did not present themselves. Take out from the list of witnesses Messrs. Blunt, Farlee, Andrews and Opdyke, and you will have exhausted all who have spoken to the cause, — all who shed any light upon the relation to the parties, on the subject of the contro- versy, or the right or wrong of the alleged libels, or the alleged misconduct of the plain- tiff. The disclosures of this trial have been felt, by all the honest and highminded, as tending to public good, and by all the corrupt men, as a blow at them in the person of the plaintiff. This action was brought to recover $50,000, not for any pecuniary damage, but to inflict punishment for a public offence. It had been intimated that the plaintiff did not intend to appropriate any of the proceeds of the verdict, but to apply them to v\^ 136 charitable uses. The idea of Mr. Opdyke being the almoner of Mr. Weed's means was ludicrous If Mr. Weed could become the almoner of Mr. Opdyke's resources, he would, doubtless, make charitable use of large sums of Mr. Opdyke's money, as he had done with his own. But the counsel said that the expenses of this suit would hardly be more than met by a verdict to the full amount. Did the plaintiff intend to deduct those ex- penses before he applied tlie charity? Counsel dwelt at some length on the subject of the liberty of the press aud the law of libel, showing the great progress made in juris- prudence on these questions, all of which was gained by the instincts of the people against the maxims of power and authority. In adverting to one of the earliest trials for libel in this country, where the jury brought in a verdict of not guilty, which was answered by three cheers from- the people outside the court, counsel stated that in con- sequence of that result, the freedom of the city was voted to Alexander Hamilton, counsel for the defendant, and there was no Mayor Opdyke to veto that resolution. f Here there was an outburst of applause in the courtroom, which was censured by the Judge.] Counsel then referred to the last great libel suit of Littlejohn vs. Greeley, where only one of the jury was in favor of substantial damages. The necessary com- ments on the conduct of public men permits the invasion of their private affairs, though not of their domestic relations. A good man never, except by mischance appealed to a legal tribunal for protection in such cases. The case of Fry vs. Bennett was a peculiar one, where the private affairs of the plaintiff were invaded persistently. Mr. Opdyke had been wholly occupied in the pursuit of gain, and he stepped right into public life from that pursuit, which he had never for a moment abandoned. There were village Opdykes in every hamlet throughout the land. Mr. Weed's career had been the opposite of Mr. Opdyke's. He had avoided public office and yet he had had power. How did he get it? It came from what he had done for other^ not from what others had done for him. His thoughts were occupied with mat- ters of great public interest, whilst those who could not appreciate him imagined that he was brooding over private and selfish matters. Hence they sought to drown him with aspersion. The organs of the party to which Mr. Weed belonged opened upon him, and sought to drive him out of the position of public influence which he had enjoyed for half a century. The slander in regard to the steamer Cataline was exploded. Then he undertook to unmask his defamers, and among them this plaintiff, who was presented here rather in the attitude of a defendant. This alleged libel was aimed at ^ whole tribe. It was a familiar suggestion, that the presumption always was that the plaintiff in a libel suit had just cause. But that presumption was unfounded. It was more likely to be the fact that he sought to escape from the presumed truth of the charges, by get- ting a nominal verdict. It was because there were no epithets, no abuse, no adjectives in the simple statement of the points in, Mr. Opdyke's public conduct, that it was felt. When Sancho Panza got sorely beaten in one of his master's encounters, Don Quixote consoled him by saying : " The reason thou feelest that pain all down they back is, that the stick with which thou wast flogged was of that length." The articles claimed to be libelous are both in reply to prior aitacks. The first article is headed, '■ The New York Evening Post." The Post had called Mr. Weed a burglar In the matter of the Cataline. Mr. Weed refuted the Cataline libel by the statements of all the parties connected with it. Then he proceeded to •'unmask" his defamers. He charges this plaintiff with getting up that Cataline slander, and with having assailed him at Washington and elsewhere. Then comes the present alleged libel ; it must be taken in connection with the rest. There was no charge of getting up contracts corruptly; but, "this man who brings 'hese charges against me has made more money out of secret partner- ships than any fifty sharpers, Jew or Gentile ;" not " sharper" in the vulgar sense, but in the primary aieaning, according to Webster, viz : " A shrewd man in making bargains." The secondary meaning was: " Cheating in bargains, or in gaming." The statement in regard to the Mariposa affair was not a libel, unless it was contained in its final words, that " there were other exactions and extortions during the negotia- tion that would make Jews blush." In other words. General Fremont had to sub- mit to the loss of large slices of his property before the matter was brought to a successful conclusion. The article then turns upon the Tnbune, and closes with an avowal on Mr. Weed's part of his disinterested support of the Government, and the causes of his hostility and opposition to the radical wing of the party. The second ar- ticle was headed " The Evening Post, Messrs. Opdyke, Field, Greeley," &c., &c. It alludes to Mr. Opdyke's appeal to the law, refers to the answer in the McNeil suit., and then speaks of what may be called the Gibbs' swindle by way of parenthesis. Then it says that Mr. Opdyke may enlarge the field of his inquiry by embracing the alleged sale vof the office of Surveyor for $10,000. Of course Opdyke had no office to dispose of, and ,!it.was his influence that was referred to. Then, as a sort of appendage, shoddy blan- kets are mentiored rejected in New York, but worked in subsequently at Philadelphia. Now, strange to s-ay, not a single witness had been examined as to what shoddy means. Undoubtedly it means inferior blankets, and you have the evidence of the plaintiff's /^/ 13t trying, after one rejection, to put them in. Thns the garments made of inferior cloth were finally thrown into the consumption of the army. There was no imputation that the plaintiff corrupted any of the officers of the Government. The jury were to put no violent construction upon the language, but take it in its natural force of the words. The article then replies to the Evening Post about the navy agency, and to Mr. Field's response in the newspapers to tlie Tribune, and again to the Eveimig PosVs sneer about Mr. Weed's representing our public interests abroad. Then, with modesty and truthful- ness, Mr, Weed disclaims any special fitness for that or any other post, and states his constant refusal to accept high places. Ail these alleged libels are responsive to attacks in which Opdyke had joined, and they are limited to statements of fact in temperate language, in strong contrast to the expressions "burglar," and "fellow," and "dis- reputable," that had been heaped upon him by the confederates in this combined at- tack. Now, the jury, in construing these libels, were to regard them as a part of an animated newspaper controversy, in which recriminations were involved on both sides. During the recent political campaign men were denounced on one side as traitors, and on the other as miscegenators. A bar-room controversy must be regarded in a different light from an obtrusion into a gentleman's parlor by vehement aspersion. Now, in re- gard to the proof, counsel might pass over, as already suflBciently discussed, the Mariposa affair, and leave to ^he jury whether the $2,400,000, the $700,000, and the $500,000 that was taken fro: General Fremont, had not been fully shown, and whether those were not pretty large slices out of his estate, and enough to satisfy the exaction and ex- tortions of anybody. The estate had already produced $3,000,000 in gold, and was sup- porting a numerous population. The embarrassment grew out of tlie inability of Fre- mont to wield it under its debts and the exliausting rate of interest. Owning five-eighths of the property, three-eighths being owned by lawyers in California, he is ready to give one-quarter of the whole, or two-fifths of all he owns, to Messrs. Ketchum, Opdyke, and Stevens, to secure the rest. Out of 62,000 shares he is to have at least 37,000. His proposition to Stevens is that Stevens should have that 25,000 shares to deal with. When Stevens comes to Ketchum and Opdyke they tell him they want that 25,000 shares them- selves, so they send liim back to get out of Fremont's 37,000 something more. Here be- gins the departure from General Fremont's munificent proposition. Stevens say to Fre- mont : These people are going to take the whole 25,000, so you nmst give me enough to pay the lawyer's fees, &c. Finally, Fremont agrees to give him 7,000 shares more.- Now, it is claimed as a sufficient answer in regard to Mr. Field's fee, that it was not ex- acted out of Fremont, but out of Stevens' 7,000 shares. But it was necessary to include the 2,000 in the 7,000 shares. I find no fault with Mr. Field's fees, but I d"o find fault with his saying that it was not worked with any exaction or increased extortion upon General Fremont. Now we have got to Fremont's giving up 32,000 out of G2, 000— more than half his property. They say to him, " You have got 35,000 left; you must put 25,000 into our hands to secure our control." That made 57,000 shares in their hands, leaving Fremont5,000. One would suppose thatall this involved a considerable amount of concession to the necessities of his situation, and his eagerness for settlement. I agree that it was good advice on the part of his friends that he should get his property back. Why didn't he get it back, except that a new occasion was made for taking more shares out of him? They said, " We will give you back 20,000 shares (why not 25,000?) but only on condition that you will sell us 5,000 at $25 a share." And yet it was selling for $55. So they succeed in getting hiiu to part with 500 additional shares, for which they pay him only half what it is worth. Now Mr. Field's fee is none of my business, but yet it must be a subject of comment publicly. We don't object to the amount, but we do ob- ject t» his not admitting it to be a large fee. [Laughter.] We never had any such fees, and never expect to have. The diflSculty with all this matter is, that $200,000 is not anything, $2,500,000 is not anything, and $700,000 ia not anything. If separated they are not anything. Then any child knows that when added together, they are not anything. So we have this owner of 62,500 shares coming out with something like 20,000. It is nothing ; he is lucky to get so much. He has got these men's money in hia pocket — money that they have left him, and which they ought to have had ; and now that he is clear of the concern, he is asked whether they took anything more than they required, and he says he thinks they did not. [Laughter.] Well, I believe they didn't take anything more than they asked for, and I don't think they took anything less. Is a sheep any the less fleeced by the clipping because before its shearei's it is dumb? [Laughter.] That is the whole of this story. It is for the jury to say whether there was not a little exaction in it. In examining Fremont, I asked him who paid him for the 500 shares. He said Mr. Hoey. I inquired, " Didn't Opdyke bear a part of it?" This was objected to. I supposed there might have been 3 checks, but it turned out that both the checks were Hoey's. So we failed then to connect Opdyke with the transaction. Then we sent for Hoey into the enemy's camp. We put him on the stand and asked him, " Did you pay for that stock?" "Yes." " With your own checks ?" "Yes." "Who contributed to that payment?" Here my friend interrupted and said it was due to the J3S administration of justice to protect the witness against this inquiry into his private affairs. But the Court said he might answer, and the witness said one-third was paid by Ketchum, one-third by Opdyke, and one-third by himself." That was a probing of his private affairs that alarmed my friend, who knew what his answer was to be. You don't need to eat a whole loaf to find out that it is sour, nor to take out all the spots or in- -jured portions oi cloth to ascertain whether it is shoddy. Now we come to the con- tracts. We are not talking about Mr. Stewart's having contracts. He is not an em- inent public character, he has not gone into public service, he is not a seeker after nominations, or a candidate for public ofiBces. He is a plain dry-goods merchant. But here is a patriot, a statesman, an inveigler against corruptions and charters of Catalines, who, in 1863, said he had no connection, direct or indirect, with contracts or business with the Grovernment, and that any supposition to the contrary was pure imagination. This man goes to work to . find fault with Mr. Weed for having at an early stage of the war, had some connection with chartering a steamboat. The question is whether, for personal gain and advantage, Opdyke has large dealings with the Government. There is only oue way for a tolerably honest and honorable man, and that he is sure that every contract with the Government is in his own name ; so proposed, so understood, so known to his political friends and oppo- nents. Mr. Opdyke, as Mayor of the city, divided his conscience between the acquisi- tion of private gain and the concealment that would injure his public reputation and in- fluence. When a man undertakes to serve God and the devil, he must expect to be criti- cised for it. When a man thanks God that he is not like these other republicans and sinners, and is exposed, people will have tlieir judgment about him. He must choose whether he will go back to his counter and increase his fortunes, or forswear sack and live cleanly. Now, what do we show? Enormous transactions. In twenty months, from September, 1861, to May, 1863, a long list of contracts in the name of a single man, Carhart, to the amount of five millions of dollars, out of which Mr. Opdyke's firm makes $172,000. But to this we have the same answer, "it is nothing." There is the_same morbid, arrogant, offensive disregard of all our common-place, every-day notions of " honest gains ; of our old-fashioned rules and requisitions against public men ; our old- fashioned ideas of moderate and sober accumulations of fortune. In answer to the statement that these parties did not make large fortunes out of General Fremont, but out of Mariposa stock, it came to this— that if they did not make it out of General Fre- mont, they made it out of the public. What was there in this view of Mr. Opdyke's con- duct to be approved, .or to enhance damages for exposing him, in the avowal that ten millions was put out as a mine, a springe, a net to catch unwary customers with ? And then all the purchasers to sell out and retire, and "Mariposa" stand at 16 instead of 75 — and that its true value. Then we come to the Surveyorship. That is "a short horse and soon cur- ried." There are only four persons who knew anything about it— Andrews, Opdyke, McNiel and Williamson. It had become a matter of rumor that there was a bargain of this kind ; that Opdyke was to give his influence to Andrews to secure the Surveyorship, in return for which Andrews was to use his place to raise $10,000 for Mr. Opdyke'selec- tion. Every one knew that Mr. Opdyke had received the $10,000 from the Custom- house ; every one knew that no assessment had previously been made for a Mayoralty election ; and people wondered how Opdyke smote that rock, and this stream of money rushed out. Now, the two disinterested witnesses, McNeil and Williamson, confirmed each other as to the whole matter of this bargain. Was it to be expected that the par- ties to this arrangement, when they appeared on the stand, would confess what they had done, especially when one of these was, as Mr. Opdyke had very truly remarked, a "practical politician," and a lawyer to boot. * Counsel reviewed the testimony of Andrews to show that the circumstances of his interviews with McNeil and Williamson, as elicited on cross-examination, fully confirmed the testimony of those witnesses, and could not be reconciled on any other theory than this bargain with Opdyke. The whole arrangement was as plain as anything could be, and not to be shunned in the absence of a written contract. The cue of these political friends was, " You boost me into Surveyorship and I will pull you into the Mayoralty. And the difficulty with Mr. Opdyke has been, that until these things were disclosed and commented upon in broad, trenchent light, the true character of the transaction, to wit: a sale of his influence to help himself to office, did not occur to him. Oh ! he says, it was done for the public good— to get a bad Mayor out and put a good Mayor in ! Well, the interest which the. city took in the matter was shown by a contribution of $2,500, while the candidate, as he says, advanced $20,000, only a portion of which he succeeded in getting back by this levy on Custom-House officers. There are men quite willing to bear their share of party contributions for public purposes, without a per- sonal object. That is a public use of private money, honorable, and if properly ex- pended in conducting our government by the franchise, beneficial. I have known men quite willing to contribute to the election of others, who would cut off their right hands before they would contribute one dollar of their own money in an election in which ^u^ 139 theywere to have a sufi'rage. You can understand that distinction? But it was too nice a distinction for Mayor Opdyke to appreciate. Next we come to the government contract. Mr. Opdyke, after becoming Mayor of the city, entered into a gun contract, which perhaps was unwise and unprofitable. The factory, in which he had the principal, almost the whole interest, was destroyed by rioters, and undoubtedly he was entitled to indemnity from the city. But what, under these circumstances, should an honora- ble man, determined to keep his name free from reproach or imputation, have done? It was no longer a question whether he should conceal his connection witli the United States Government. It was now turned into a claim against the city of New York. He should have said, " It will not do for me, the Mayor of the city, to go on in this nominal way — to have ray interest appear in an obscare or doubtful manner, or another name- If I am going to recover from the city of NewYork--I, being Mayor, will do it in my own name, so that there may be no misconstruction, and that my fellow-citizens will see it is my claim." But what have we ? Mayor Opdyke, instead of presenting the claim in his own name, for the whole amount, treating it as his own, according to his own evidence, only spoke of his interest in it on one occasion; and then to Mr, Purdy, a Supervisor, urging that it was a large sum of money to lie out of, and if it could be urged forward he would feel gratified. The condemnation, as taken from his own lips, was complete. He concealed, he suppressed, he left in doubt the fact of his paramount interest, and left it to be sup- posed that Farlee was the party in interest. In the newspaper accounts of the day, in the record of the evidence, there is not anything to show that Mayor Opdyke ever had a claim or interest in a claim against the city of New York. He appears before the committee, speaking of his interest, as if it were an indeterminate one ; leaving the in- ference that Farlee, his son-in-law, was the owner of the claim ; and then he says to them, "I have told Farlee to be very careful and accurate ; I do not know anything about the details." Although here he acknowledges that, as to the only question in dis- pute, he knew all about the principle of including profits, and disguising the form of it. Yet this was not concealing, suppressing, and sidling along the claim, under his high character as Mayor ! He has told us his own story and given us his own measure of the dignity and propriety due to his character. I never saw a witness of greater courage or better judgment. .He takes the responsibility up to the very verge of safety in regard to those matters where there is no counter evidence. On the gun claim, everything being proved, he accepts it, and puts it upon the ground that it was all right and proper. No'W' the question was not whether the claim against the city were a proper one, merely —but the manipulation and way of presenting it. Suppose for a moment that it was right to include profits, as well as capital advanced, — why Avas not that claim brought squarely and fairly before the committee ? Why conceal the question of profits under the cloak of charging for the guns at Government prices, less the cost of completing them? Mr. Blunt, than whom no man knew more about guns, was deceived by this acute means of getting at profits and patentee fees on guns that were never finished. Would it not have been more fair and honorable to state it to the committee exactly as it would be stated be- fore a jury, raising the question whether profits should or should not be allowed ? Then Mr. Blunt, who says he dismissed the claims of poor men, who claimed for prospective profits in the shape of labor, in less time than it took to sell it, might have known what he was doing, and dismissed this claim, or said : " Mr. Opdyke, we will allow your pros- pective proiits on these guns — take your check for $199,000." But this was not a proper or allofvable basis on which to make a claim against the city. It was made up on the principle of having dollar for dollar on an investment that (as Mr. Blunt stated) sank 90 per cent, of capital, and then getting full profits that would have been made had the guns been completed. As well might the druggist who was burned out, make up his claim on the basis of charging for what his pills would have brought when made up and sold, deducting the expense of converting his drugs into that shape. As well might the shoemaker, who had a large number of skins on hand, and who had a large piospeotive custom, charge for what the leather would have brought when made up into shoes and boots, and then deduct the cost of labor. The remarks of Mr. Evarts were brought somewhat abruptly to a close, by Mr. Henry Harris, a juror, rising and stating to the Court that he hoped the law was not going to make him break his religion as a Jew, by requiring him to sit any later. Judge Mason said he was not aware of anything in the Divine or human law that made the Sabbath commence at four o'clock. Mr. Haekis repeated, somewhat excitedly, that he was a Jew — that he had always kept his Sabbath, and he would not break it for any law ; that he would leave, whether the Court gave him permission or not. Judge .VIason said that while he had every respect for the religious opinions of the members of the Jewish persuasion, and had given up sessions on Saturday to accommo- date them, yet this trial had been so often broken in upon, and so much prolonged, and as there was nothing in the Mosaic law or the statutes fixing this hour, he should insist upon the juror taking his place until the adjournment. If he left without permission of the Court, he would be compelled to fine him, and commit him to the Tombs. 140 Mk. Emott suggested that the juror did not mean disrespect to the Court, but that the Jewish Sabbath commenced at sundown, and it was now so near that time, they might, perhaps, as well adjourn. Adjourned to 10 o'clock on Monday. "§i ' EIGHTEENTH DAY. MONDAY, JANUARY 9tH, 1865. ARGUMENT OP WIL.LIAM M. EYARTS FOR DEPENDANT (COJ^CLUDED). At the opening of the Court, this morning, Mr. Evarts, before resuming his consideration of the topics which he was examining at the adjournment en Friday, made some suggestions as to the legal rule governing the claims of parties against the city for property destroyed by rioters. The claim of the owners of the armory, destroyed on 13th of July, 1863, against the city of New York, was based on the statute of 1855 ; and the measure of such claim is the actual value of the specific property destroyed at the time of its destruction, and in its mere quality as property, without. any allowance for use and enjoyment, or for gains expected or accruing. The relation of the county is that of an insurer or indemnator. (2d Philips, p. 56, citing Laurent vs. Chatham Ins. Co., 1 Hall, 41.) Addressing the jury, Mr. Evarts resumed his consideration of the "•Gun Claim " against the city, and passed to the machinery and tools. There were no difQculties in presenting a complete account of the tools and machinery, the material and the articles in an unfinished state ; for these elements had to be considered in mak- ing up the claim in its present shape. The proper way was to set down the schedule of machinery and tools, and giving its value as it stood at the time of its destruction. Set- ting down the articles at their value, they would then come to the portion of the car- bines which had a fixed price, then the labor expended, and thus the claim would have been made distinct and clear, beyond the material and labor, of over S20,000 for paten- tee's fees on arms that had never been complete:!, and also the profits expected on future construction of the guns. But how does the claim for machinery and tools appear to have been made ? The principle and result, as exhibited in the schedules, was no^ to give values, but dollar for dollar, all that had been expended by the capitalists and speculators on the subject contained in the schedules. In the statement of the claim be- fore the Board of Supervisors there was no suggestion that the cost of 1,050 guns deliv- ered to the Government was not included. An opportunity of explanation was offered to Mr. Farlee and Mr. Opdyke, and the.y failed to give it. All the expenditures were considered at the cost of making the 6,000 guns, and in that view there was an absolute suppression and exaggeration of tLie claim by what appeared in the general expendi- tures and outlay as attributable to the 1,050 carbines being carried to swell the cost of the 6.000. Suppose certain machines had been sold, would it not have been dishonest not to have deducted the product of their secondary sale? The $185,000 should have had a reduction by the $15,000 received from the Government, but which being balanced in the cash-book does not appear as a reduction. Counsel adverted to the attempted impeachment of Mr. Stover. Of course it would not have been attempted had his testi- mony been unimportant. But the witnesses who were brought to impeach him were not much acquainted with him, and the attempted impeachment was a failure. Mr. Gibbs said that in the claim as presented to th-e Board of Supervisors there was a large swindle. Was there not an artifice in the presentation of that claim? It was a delibe- rate artifice on the confession ofthe plaintiff. All the sums put in were put in as cost and not profit. There was not a lisp of the money got from the United States Govern- ment, nor of the portion that was to go to the patentees, nor ofthe profit to the owners. And when the claim was paid the patentee was kept out of his portion on the principle of " equity." The testimony before the Board of Supervisors was taken down, read over to the witnesses, and by them signed, and now the plaintiff wanted you to read it all backward, with this and that interpolated. Mr. Weed based his allegations upon the testimony as it was rendered, and for so doing he was held for accountability at this tribunal. The question was, had injustice been done by the defendant to the plaintiff, by the narratives which appeared in the public prints ? The evidence showed that Mr. Weed was the assailed party, and that he under- took to unmask his assailants, among whom was the plaintiff. And from testimony drawn from the friends, employes and dependents of Mr. Opdyke, the facts upon which the charges rested, had been abundantly shown. The plaintiff had overlooked the fact of his public relations- He had put himself on the level of Farlee, McNeil an 1 Jones in the gun contract, and treated himself as under no obligation of strict official duty, of honor, of dignity, of public spirit, of public character, toward this community. So, likewise, in rega,rd to the Mariposa matter ; Mr. Opdyke had treated himself as a private 141 individual, and not in his assumed position of devotion to the public interests and the public good. So, too, in regard to the Surveyorship ; he put himself on the level of the common plotters to secure office by means of money, political management and strategy. He never had been a subject of comment by the defendant, except in the light of his public relations, and of his ostentatious and paraded claim that he had no connection with these kinds of pursuits since he became a public man. And what was his justifica- tion ? That he was not a thief, a robber, a forger, an escaped felon? If a man displays himself for admiration, he must run the risk of admiration. If he is afraid of the glare of the footlights, let him shoot the pit. Diogenes sought for an honest man with a lan- tern. We, in our joy at the discovery, have placed two lanterns at the doors of our Mayors, and Fernando Wood and George Opdyke are the latest ilhistrations of our suc- cess. [Laughter.] They come, one after the other, from opposite parties, so that we can feel no disappointment of party feeling. We made them, and we must stand by them and share their fate. How much came from placing rich men in oflSce? Princi- ple, character, moderation, self-control, are the test whether a man be rich or poor. Many a poor man has remained poor because he has been shifting, vascillating, and either actually dishonest, or so near it, that he never was trusted. These evil habits are quite as likely to grow upon what they feed upon as to become eager from absti- nence. It was out of a crowded harem that King David desired Uriah's wife. Thia case is already decided. The evidence has been impartially displayed by the press and promulgated all over the land. The question is not so much what the evidence or con- clusion is, but whether you and I and all of us have virtue enough of our own to put a true standard of measurement upon this transaction. We have a maxim in our law, that when the guilty escapes, the tribunal that tries him is convicted. So it will be with us to-day. It is the measure of our judgment that is asked for. You have that issue in your hands. You have the keeping of the public fame, public character and public safety. Now if you like this kind of public men, or public conduct, and think that evil has been done to this community by the comments and denunciation of the de- fendant, clothe the plaintiff, as he asks you, in the purple and fine linen of your applaud- ing judgment, put the golden chain of your favorable verdict about his neck, carry him from this court-room on your Ajax shoulders, blow your sycophantic trumpets for him, and proclaim, until it shall ring through the land, as my friends say, " Thus shall it be done to the man that the people delight to honor." Sound him victorious ! ( Long to reign over us, Opdyke the glorious ! [Laughter.] Or rather, excuse me for a wild imagination as to a verdict that could be looked for only from a jury empanneled in a mad house. All know that the lapsing virtues and sinking fortunes of this community rest in your hands. Know and teach that the freedom of the press is the death of sham patriotism and the grave of public corruption, and that there is nothing to be looked for in a verdict of a jury that shall withdraw from this death its sting, and rob this grave of its victory. [Applause.] The Court — We must have no more of this in the court-room ; it is not the place for plaudits. ARGUMENT OP D. D. FIELD, ESQ. Mr. Field addressed the Court and Jury for the plaintiff: This trial has lasted so long, it is so important to the parties, it has excited so much Interest out of doors, and, more than all, it is of such consequence in its relation to the administration of justice, that I shall not conceal my solicitude for the result. Ihave no doubt whatever that the plaintiff is altogether blameless, in word and deed, in re- spectto every transaction brought before you, properly or improperly, in this long and discursive trial. I have as little doubt that the defendant is a wanton and malignant de- famer, who has assailed the plaintiflf for being in the way of his own evil deeds and evil purposes, but I am to learn by your verdict what vigor yet remains in the law, and how far a libeler can be restrained and punished. Your oflSce, gentlemen, is the greatest that can be placed in human hands. An English historian has written that the last ma- chinery of the English Government ended at last in putting twelve men in the jury box to decide upon their oaths. This is as true of America as of England. Even this Titanic conflict which shakes this continent from sea to sea, had for its purpose and end the execution of the laws. The purity and dignity of the tribunals, the learning of the judges, the wisdom and firmness of juries, are the aim as they are the proof of our ci- vilization. If any extraneous influences were permitted to enter the courts of justice, any pressure from without or any claim within, it matters little what may be the form of government. Here we are to hear nothing and know nothing but the law and the testimony. The duty of the jury was never better told than in that ancient formula of 142 the law, with which they were addressed when they were empanneled : " Good men and true, stand together, and hearken to the evidence." You are gathered together to pei-- form a great public duty, never, probably, to be assembled again. The act which you are to perform will live in its effect upon the public, will live in the memories of men, not only long after you shall have separated, but long after yon have all been gathered to your fathers. The libels for which this action is brought are two in number — one published in the Albany Evening Journal on the 18th of June, 1863, and the other in the same paper on the 25th of the same month. [Counsel read the libels.] To the com- plaint for these successive libels, put forth with great deliberation, under the defendant's signature, in a journal of large circulati n and influence, the defendant makes in his written answer three defenses, or what he claims to be defenses — first, that the state- ments are true ; second, that he was provoked to make them ; and third, that he made them upon due investigation. Of these three defenses, set forth with all gravity, there is not a particle of evidence as to the two last. The defendant was not able to produce any legal evidence of provocation, and he did not venture even to offer himself as a witness to prove that he made any investigation or inquiry to ascertain the truth of his charges before he made them. The only questions that remain, therefore, are the truth of the charges, and if they are untrue, what damages the defendant shall suffer for hav- ing made them. Let us, then, take them up and compare them with the proof. They maybe divided into four classes: 1. The alleged misconduct in respect to the claim against the county of New York for the daninges caused by the rioters in the destruction of the armory. 2. The alleged misconduct in respect to the appointment of Mr. Andrews to the office of Surveyor. 3. The alleged exaction and extortion from General Fremont. 4. The alleged frauds on sales of army clothing to the Government. We will begin with the claim for damages caused by the destruction of the armory. It would not be easy to crowd into the same number of words a greater number of falsehoods than are contained in the part of the libel relating to the armory. Let us read it again and compare it with the proof. 1. Weed says that " Mayor Opdyke was by virtue of his office a member of the committee before which this claim was allowed." This is untrue, every word of it. The Mayor was not by virtue of his office a member of the Board of Supervisors, or of any of its committees ; he was not made such by appointment; he was not a member at all. 2. Weed says "that Opdyke disclaimed any interest in the gun claim." This is false. Mr. Opdyke never, at any time, or un- der any circumstances, disclaimed an interest in it ; on the contrary, he proclaimed it on all proper occasions. The armory was called Opdyke's armory for months before the riots ; it was designated as his in the account of its destruction given by the news- papers the day after ; the nature of the claim and his interest in it was published in the Evening Post by authority of Mr. Opdyke himself ; the day the claim was presented, Mr. Purdy, one of the Supervisors, was informed of it, while the claim was pending be- fore the committee, and when it was called up. Mr. Opdyke being invited to attend, came into the room and excused himself from remaining by informing the whole com- mittee there assembled that, having an interest in the claim, he could not with propriety remain. 3. Weed says that " Opdyke sat on the committee investigating the claims of his son-in-law." Every word of this is false. 4. Weed says that " Mr. Opdyke refused to divide profits fairly, and Mr. McN^eil, member of the present Legislature, commenced a salt against George Opdyke for a sixth part of the $190,000." Here are three false- hoods in one sentence. Mr. Opdyke did not refuse to divide profits fairly — he offered all the profit-. McNeil, member of the Legislature, did not commence a suit. Mrs. McNeil commenced one. It was not for a sixth part of $190,000, but for about $19,000. I will not stop to observe, as an evidence of the recklessness with which Weed wrote this libel, that though the documents showed the amount received from the city to be $199,700, he cared so little for accuracy as to put it at $190,000. 5. Weed says that " in presenting this claim to the Supervisors, Opdyke declared that he had no pecuniary interest in it." This is every word of it false. Mr. Opdyke never made any such declaration, and, indeed, never presented the claim to the Supervisors. 6. Weed says that, in answering McNeil's complaint. Mr. Opdyke " avers himself the owner of the share claimed by the plaintiff"." Mr. Opdyke did nothing of the kind. A copy of the answer seems to have been given to Weed, and he therefore knew better. 7. Weed says, " this, therefore, is Mayor Opdyke's position, to qualify himself to act impartially and honestly for the taxpayers of New York, on a committee he disclaims being interested in the gun claim." This is false, like the rest. Mr. Opdyke did not qualify himself, nor attempt to qualify himself, to act dn the committee ; it has already been shown that he did not disclaim being interested in the claim. 8. Weed says, that before the claim was paid, Mr. Opdyke had repudiated " his owership of the largest share." This, too, is utterly false. Driven by these proofs of his false- hoods the defendant retreats to the claim itself, cries out, well, if I did make all these false accusations, nevertheless the claim was unjust. This would not protect him if it were true. A defendant cannot justify eight false accusations by showing that the ninth /^^ 143 is true. We will, however, pursue him into this retreat, and see if it will shelter him. What he says in the libels about the claim itself, is contained in these two sentences, one in the first libel and the other in the second : " It is alleged that $25,000 received from the Government the contract was forgotten in making up the claim against the city ;" and " Mr. (iibbs, the carbine patentee, says that, in the claim submitted to the Supervisors, on which $196,000 was paid, there is a large swindle." You may observe, by the way, that he has got the amount a little larger now, though he does not even yet condescend to state it correctly. At first he gave it as $190,000; a week after he gave it as $196,000. Perhaps in the next libel, if he venture upon one, he will get up to $199,700. Here are two sentences, one of which puts the defamation in this form: " It is alleged that $25,000 was forgotten," and the other in this : " Gibbs says there is a large swindle." These charges are not to be justified by proving that somebody alleges one thing and Gibbs says another. The law does not allow a man to libel another in this cowardly manner. The truth of the thing alleged must be proved. Thus regarding these charges, I will consider them together. They both charge a fraud. The forget- fulness mentioned in the first sentence is intentional forgetfulness. The defendant is obliged, therefore, to prove that the claim is illegal, unjust, and fraudulent. A " swin- dle" is a gross cheat, accomplished by artifice. The defendant must convince you that the claim is not only illegal and unjust, but that the plaintiffknew that it was so, and procured its allowance by gross artifice. I might content myself with reminding yon that every person interested in the claim ; every person concerned in getting it up ; every person voting upon it, supposed it was legal and just. Jones, one of the defend- ant's principal witnesses, suggested it, and declared on oath that he thus considered it, and does still consider it legal and just, and made upon the correct theory. Keene, another of the defendant's witnesses, gives the same opinion, and says he would swear to it till he was blind. The book-keeper who made it up swears the same thing. Mr. Farlee and Mr. Opdyke both affirm upon oath the same opinion. Would it not, there- fore, be unjust and cruel to fix upon the plaintiff" the stigma of having designed the per- petration of fraud, even if the claim should be pronounced untenable? But I will not stop here. I will accept the challenge of the defendant's counsel, to try this claim as if it were a suit against the city to recover it, and I undertake to show, not only that the claim was all of it recoverable, but that it was less by a large amount than might have been just- ly demanded and recovered. To this point.divested of all other circumstances, I no w invite your attention. The purchase from Marston was made on the 1st day of December, 1862 ; the property was appraised bv two appraisers, one of whom was Mr. Colby, a member of the well-known firm of R.fM. Iloe & Co. It amounted to $92,135.02, wfiich was about $10,000 less than it had costMr.M;irston; Mr. Farlee paid $91,154.06 for the whole. Of this proper- ty there remained at the time of the fire, $?7,093.31 in value, estimating it at the same price which had been paid to Mr. Marston. Between the 1st of December, 1862, and the 13th of July, 1863, the time when the property was destroyed, there had been added machinery, tools, fixtures, &c., purchased or manufactured, amounting to $30,836.38. These two sums made $97,929.69, which are put down as the total value of the property exclusive of the carbines manufactured and in process of manufacture. The number of manufactured carbines was 500, and these put at the price for which they were sold to the government, that is, $.'4.70, amounted to $12,350. There were 5,500 carbines in the process of manufacture at its different stages, some of them, the most advanced with all their parts complete and ready to put together, and others, the least advanced, all forged and inspected but not machined. The principle upon which the claim for these unfinished carbines was made out, was to charge them at the price which the government had contracted to pay for them, less what it would cost to finish them. Thus estimated, they amounted to $98,215. The claim, therefore, consisted of these four elements : The machinery and tools bought of Marston $67,093 31 The machinery and tools subsequently required 30,836 38 The 500 finished carbines 12,350 00 The 5,500 unfinished carbines 98,215 00 Total $208,494 69 Deducting proceeds of the sale of damaged machinery $2,214 98 And adding 593 bullet-moulds 783 00 1,431 98 Left the total claim at ; $207,062 71 The Supervisors reduced the amount by taking off. 7 ,362 71 Andawarded $199,700 00 This claim has been attacked in two respects, first, in respect to the value of the tools and machinery, and, second, in respect to the value of the unfinished carbines. «• \ v'W 144 It has not been alleged that thei'e was any error in the number and kind of the arti- cles charged as destroyed ; but in the values afiQxed to them. Here let it be observed, at the outset, that the libel assailed only the claims for the unfinished carbines. The defendant's article spoke of the claim for " damages sustained in the destruction of guns in the process of manufacture." He could, therefore, have had no idea atthattime, that there was anything wrong in the residue of the claim. And even down to the trial, neither he nor his counsel appears to have had any such ideas. The junior coun- sel, in his opening that monstrous tissue of aggravated libel, took occasion to say, ex- pressly, that the transaction between Mr. Opdyke and Mr. Marston was " an honest, fair, and just one." It seems to have been reserved to the brilliant genius of Stover to discover and convince Weed and his counsel that the transaction was dishonest, unfair, and unjust. But let us examine it for ourselves, and in detail. First as to the tools : Mr. Colby valued according to his excellent judgment all the tools purchased of Marston, and he testifies to the correctness of the value put upon them. He also testifies that the machinery was valued at its cost, the bills being exhibited to the ap- praisers, and the different articles verified as on hand, and in good order. His testi- mony in this respect, is corroborated by that of Marston. To disprove it, the defendant brought forward Stover, whose testimony on this point failed altogether. He declared that eight diflferent articles of the machinery were bought by Marston of him at prices less than those charged, the difference on the whole being $228. The bills, however, were produced the- next day, and they showed that Stover's testimony was utterly false. He notified farther that certain other articles, which he did not sell to Marston, were overcharged. He could not know what they were sold for, since he did not sell, but his estimation of the prices as proved to be false. His estimate covered only eleven items out of several hundred, and seven of the eleven, if his testimony were leliable, would make only a diflerence of $558. This should be enough to put the value ot the things in the stocking-room beyond dispute. Another of the four items is for the main shafting, including pulleys and hangers, which is charged at $1,681 16, which Stover says should have been charged at $640. But it appears that he himself sold less than half of it, and Mr. Marston, Mr. Colby and Mr. Parlee, all testify that the whole cost $1,681 16. The third item is for putting up and adjusting counter-shaft of sixty-five machines, which is charged at $1,495, by which Stover says should have been charged at $S a machine, making, according to his computation $450. His estimate is as false as his arithmetic according to the testimony of Marston, Colby and Farlee. There can therefore, be no doubt that all the tools and machinery specified in the claim, as hav- ing been purchased by Mai-ston, were in the building when it was destroyed, and that Mr. Farlee paid for them, not only all that is charged but much more. We thus estab- lish the justice of the claim to the extent of the $67,093 31. Let us now go to the next class, that is, the tools and machinery purchased and manufactured from December 1, 1862, to July 13, 1863. It will be remembered that all the books and papers of the es- tablishment, except the cash-book and a ledger since found, were burned in the fire. Mr. Farlee, the proprietor, Mr. Keene, the Superintendent, and Mr. Paret, the book- keeper, were therefore obliged to make out the list, partly from memory and partly from the charges in the cash-book. They did so. Every one of them said he did it concientiously, with all the accuracy and minuteness that was practicable, and at the cost appearing upon the cash-book. Stover, however, obtrudes liimself also into this schedule. He says that the charge for 29 tool hands is too large ; that instead of 29, there ought only to have been 2. He of course did not know how many there were in the establishment; he infers or guesses that two were enough. On the other hand Mr. Keene, Mr. Paret, and Mr. Farlee, all testify that they made up the charge from their own knowledge ; they called the tool hands by name and counted them, and they were all fully employed. It is suggested, however, rather than attempted to be proved, that these hands were employed in repairing as well as making tools, and that the cost of repairs ought not to enter into the price of the thing repaired. To answer is two-fold, first, that there were no repairs but ordi- nary ones, and those of very small account; and second, that the cost of repairing, from ordinary wear and tear, does enter into the cost and value of a manufacturing es- tablishment. The amount of ordinary breakage in many kinds of business, that of deal- ers in crockery, for instance, enters into the price of the articles sold. Without estimat- ing that, an;! putting it upon the unbroken articles, the dealer would soon find himself in a losing business! It thus appears that the machinery purchased of Marston, aud the machinery and tools afterward purchased or manufactured were put down at their ac- tual cost, and that the tools purchased of Marston were put down at their actual value as estimated by the appraisers, of whom Mr. Colby was one. The attacks made upon these two schedules, therefore, fail entirely. Their amounts are $97,92!). C'J. Au at- tempt, however, has been made to show that these tools and machinery ought not to have been charged at their cost, but at a depreciation, because they had been used. They had been in use but a short time. The establishment had been worked only /^s 145 about five -weeks, and bad just begun to turn out its full complement of guns — fifty a day. Under these circumstances, every witness vcho has testified on both sides, afSrms that the tools and machinery were better, not worse, for the use thus made of them. Some of the witnesses do indeed say that if scattered and sold to third .persons, they would not have brought as much as when new, but that is not the test on its value; what was their pecuniary value to the ownerat the time of their destruction, is the true test. They had, in the present instance, increased largely in price, in common with all other gun machinery, for two causes, one, the great demand for guns arising out of the war, and the other the depreciation of the currency. The witnesses generally say the increase had been from 25 to 60 per cent. Taking it at 30, and we have the real value of the tools and machinery which the rioters destroyed, not $97,929.69, but up- wards of $127,000. The next charges were for the finished and the unfinished carbines. So far as the finished carbines are concerned, there is no complaint, but there is a great outcry against the charge for those which were unfinished. Why there should be an outcry against it I have never been able to discover, except in the disposition of a libeler to raise a cloud, under cover of which to escape the consequences of his defama- tion. The carbine in question was a peculiar arm ; nobody else had a right to make it ; nobody else could make it. The Government had contracted for 10,000 of them, and there was a fair prospect of its taking more ; 1,054 had been delivered and paid for, 600 more wore finished, ready for delivery, and would have been delivered that day; 5,500 more were unfinished in different stages of the proceeds of manu!"acture, and would h»ve been completed at the rate of 60 a day, the whole 5,500 in 110 days. As fast as finished and delivered, the Government was to pay for them, the price of the whole 5,500, amounting to $135,850. It would cost $1.97 a gun to finish the first 600, $3.40 the first 1,000, $5.57 the second 1,000, $7.38|- the third 1,000, $9,46 the fourth 1,000, and $10.83 the fifth 1,000; that is to say, it would have cost $37,635 to finish the M'hole, and on finishing, the proprietor would have been entitled to $135,860. They were there- fore nearly three-quarters finished. Under these chcumstances the defendant's counsel advances the strange, and as it seems to us, preposterous proposition, that Mr. Parlee was entitled only to the value of the separate parts of these carbines, separately valued, and the different values added together. Thus, for exam- ple, they take the five hundred unfinished carbines, all the parts of which were completely formed, and which only required to be brought together, assembled as it is called, to make the complete gun at an expense of $1 97. They say, we should va- lue the barrel by itself, the lock by itself, and so of each of the other sixty parts, and add their values together to get the amount to be claimed. We say, we should take the price of the carbine, as the Government was to pay for it, which was no more, as all the witnesses say, than its fair value, and deduct the cost of bringing the parts together. Is not ours the true mode? No other will compensate the manufacturer ; less than this is not an indemnity. If our mode is not the true one, then this result would follow — that while the owner of a complete gun can recover its full value from a trespasser who de- stroys it, yet if the owner has, perchance, taken it in pieces and laid the parts each by itself, to clean them, and they are all in that state destroyed, he can only recover of the trespasser the aggregate value of the separate parts, separately valued. The principle may be also illustrated by reference to another instrument of war, the iron-clad Bunder- herg, now lying unfinished in Mr. Webb's shipyard. The rioters sought its destruction. It was, however, saved . If it had been destroyed, what would have been the measure of Mr. Webb's claim against the city ? Would it have been the price at which it would sell in its incomplete state? That would be very little, probably not a hundredth part of what it cost. No merchant would have bought it. For purposes of commerce it would not have been worth a dollar. There would have been no market for it. The fair value of the structure is its value to Mr. Webb for purposes of sale to the Govern- ment ; that is, the Government price, less the cost of finishing it. The Court here stated that he had been impressed with the force of the counsel's argument, in assuming a certain price for the guns and deducting the expense of finish- ing them. But th,e difficulty in his mind was, whether the plaintiff- had a right to charge the city the price the Government waste pay, or the actual value of the guns. He had more doubt in regard to. that. The Government might fail, or refuse to take the arms,: and then thev might not bring so much in the market. Mr. Field said that he had questioned, two of the witnesses, at least, whether the. Government price was the fair value of the guns, and they said it was. The Court thought the evidence showed^ rather, that the|guns had no market value. Me. Field referred to the testimony, to showtliatit was as he stated. Then, turning to the Jury said : If there, is a doubt in. the mind of the Court, and he asks for authorities on this question, then there was certainly no swindle in presenting the claim on this basis ; thus was the claim made up. . When it came before the Supervisors, the examin- ing Supervisor directed his attention chiefly to another mode of estimating the value of the unfinished carbines, and that was their actual cost. Though that was not, as we 10 ■ 146 ." i " euppose, the true mode of estimating the value, it so happened that the amount claimed and the actual cost were nearly coincident. Whichever way the calculation was made, the result was the same. The elements of both calculations were stated in the testimony taken by the Supervisors. For the purpose therefore of silencing cavil, and disarming prejudice by reason of any supposed proSt of the proprietor, I will now show the finan- cial condition of the establishment. It will thus appear that the carbines actually cost all that was claimed, and more, and that when Mr. Blunt drew his conclusions from the cost, he drew them just as accurately as if he had drawn them from the price calculated by the Government. Here is the profit and loss account, from which you see that I am justified in all I say. The claim of Mr. Farlee thus made up amounted to $207,062.71. Mr. Opdyke did not make it up ; he entered into none of its details ; he was informed of the principle according to which the unfinished carbines were charged, and approved it; he rejected an item which would have swelled it; the only instructions or advice which he gave, was a caution to Mr. Farlee to put in nothing doubtful, and to err, if at all, in favor of the city, and beyond this he had no part in the making up, presentation, or proof of the claim. It was presented in the name of Mr. Farlee, because he was the legal owner ; the property stood in his name ; he alone sued for it ; he alone could have sued for it; his receipt and release was the one, and the only one, which could protect the city against a second claim. The interest of Mr. Opdyke, however, was well known; the armory had gone by the name of Opdyke's Armory long before the riot; the violence of the mob against it was on that account ; its destruction was announced in the news- papers of the next day as the destruction of his property, and when, on the 9th of Sep- tember, the claim was presented, it was announced in the Evening Post of the 10th of September, upon the information of Mr. Opdyke himself, that he was interested in it, and its amount was stated with all the items for the carbines, finished and un- finished, set forth at length. Notwithstanding liis large pecuniary interest, Mr. Opdyke refrained from urging it personally upon the Supervisors ; he was not a member of the committee, or of the board, and when, upon the occasion of their final action, he was requested to attend before the committee, he came after three successive messages, to their room in the hall, on the fioor above the Mayor's ofBce ; he stated to them that he was interested in the claim, he could not remain, and only desired them to treat it as they would that of any other. After he left, it was considered and allowed at $199,700. The notion that the $28,000 received from the Government was forgotten or/suppressed in making up the other claim is the strangest of all the strange fancies which this cause has engendered. The claim embrac- ed nothing which had been delivered to the Government, and therefore credited nothing which had been, or was to be, received from the Government. Has it ever occurred to my learned friends, that if this claim was improperly allowed, the Supervisors and the Comptroller of the city are equally culpable with the Mayor ? They, and especi- ally the Comptroller, are the guardians of the city treasury. The Mayor had merely a suspensive vote. The Supervisors' Committee were only advisory. The Comptroller was bound to examine every claim himself. He did so examine, and in many instances, reduced or refused claims allowed by the Supervisors. The Corporation Counsel was also bound to be vigilant. He was paid for his vigilance. His close relations with the defendant are well known. The defendant was then at open enmity with the Mayor. If there was any- thing wrong in the claim, why did the Counsel to the Corporation connive at it? The de- fendant's libel, though a thrust at the plaintiff, is reallj- a stab at the Supervisors, the City Comptroller, and the City Counsel. But there was nothing wrong in the claim, and that is the reason why it was passed. I will here take occasion to say that, in the opinion of my associate and myself, the claim presented was not only a legal and just one, but considerably less than it might have been made. The profits that would have accrued from the remaining carbines which the Government contract called for, from the 2,946 not yet forged, were, as we think, properl}' chargeable. The defendant has endeavored to prove that the carbines might have been duplicated in the establishment at from $14 to $16 48. Taking the latter as the true cost, and adding the tariff to the patentee, $3 50, the profit on each of the 2,946 would have been $4 72, which would have amounted on the whole to $13,905 12. Mr. Keene testified that there were in the building, materials for 200 to 300 carbines, beyond those charged for. There might, therefore, have been justly added to the $207,062 71 SO per cent, advance in price on the tools and machinery 29,378 90 Materials for 250 carbines at half price 6,175 00 Prospective profits on 2,946 carbines 13,905 12 Total $256,521 73 Interest from July 13 to October 23, 1863 5,087 68 Total $261,609 41 Amount actually received 199,700 00 Total $61,909 41 /¥