he is thus engaged, without his consent, Mr. Kruger jumps on the horse, and rides him off. When Carlin found the horse thus disposed of, he told Mr. Collins that he must return the horse within three days, provided the defendant put in the counter-security required by law to enable him to keep it, and that, it was understood, would be done. Messrs. Beebe & Donohue were the attorneys for Mr. Collins in this matter. They are gentlemen of the highest respectability in the profession, and one of them was, until very recently, a judge of this very court. Thus the matter remained until the counter-security was given, and then the horse was demanded. It is a very common thing; or if it be not common, the Deputy Sheriffs have the right, when they replevin property, to place it in the custody of any person they see fit-they being responsible to the Sheriff, and the Sheriff to the parties, for the delivery of their property, whenever it is legally demanded. Very frequently they designate, as the custodian of the property, the person recommended by the plaintiff's lawyer. They do it, however, at their own risk. Well, when the counter-security is put in, Carlin goes to Beebe & Donohue, and tells them that the horse must be forthcoming at once, and must be delivered to the defendant. Somehow or other, Collins had got possession of this horse. Messrs. Beebe & Donohue at once advise Collins that the horse must be given up immediately, as the defendant, having given the requisite security, is entitled to it. Collins, however, believing that the horse had been stolen from him, and being almost as firm about the matter as Jones himself, insists upon his rights; he says, that the horse was taken from him by Jones, upon false pretences; that he has never received one cent for him; that he is his property, and that he will keep him; he says, that morally, the horse has been stolen from him, and, in the language of Mr. Jones, that he does not see how a man can be robbed of his property in this way. Then various negotiations are entered into. Beebe & Donohue propose to withdraw the suit, and let Jones keep possession of the property, until the question of title between him and Collins, can be decided. They have various conferences with the counsel of Jones upon the subject, and I believe that, without exception, they all advised him to agree to that. A great deal of time is spent in these negotiations; Carlin meanwhile using every exertion in his power to get the animal. Finally, after all the means are exhausted, Jones vacillating and vibrating between different lawyers, beginning with Martin & Smiths, then calling in Busteed, and ending with Mr. Whiting-and proving too obstinate for them all-it is ascertained that he will not consent to that proposition. Well, Judge Beebe, feeling morally bound to restore the horse, and to place Carlin in a position to redeliver it, goes to work to find out where the horse is; he works day and night for weeks, in order to get the horse back, and to relieve Carlin from the unpleas ant predicament into which he has got in this case. It is unpleasant, not because he has committed any offence, but because of the annoyance to which he has been subjected. Finally, after great exertions, on the part of Beebe, he ultimately succeeded in getting the horse back, and delivering him to Carlin, who then took him up. and delivered him to Jones, by putting him in the stable from which he got him; Jones thus getting back his property. These, gentlemen, are the facts of the case, as I think the evidence will establish them; so that you will at once perceive that Carlin, although he has been a little unfortunate in this matter, has done nothing in the world, at all inconsistent with his duty. It is true, the custodian who had charge of the property did not return it in time, and consequently he could not deliver it up to Jones. Well, then, Mr. Jones having refused to follow the advice of his counsel, prefers charges against the Sheriff, who probably, in point of law, is the party responsible for any misconduct or wrong done by his deputies, in consequence of which damage is sustained. The result of these charges is, that the Governor appoints Judge Daly, of the Court of Common Pleas, to take the testimony in the case, and report it to him. Mr. Jones employs counsel to prosecute those charges against the Sheriff. The whole matter was fully investigated, and the charges were dismissed by the Governor, as proving nothing against the Sheriff; and also on the ground that there was a remedy by civil suit; and I believe now, the complainant, Mr. Jones, has a suit pending against the Sheriff, for the damages he alleges he has sustained in this matter. At any rate, if there was any harm done, there is ample remedy in the civil courts. The party can sue and recover the damages sustained, by reason of the detention of the horse. These, gentlemen, are all the facts of this case. Now, the indictment is framed on this section of the Revised Statutes:— "Where any duty is, or shall be, enjoined by law upon any public officer, or upon any person holding any public trust or employment, every willful neglect to perform such duty,"-mark the expression; not a mere omission, but-"every willful neglect to perform such duty, where no special provision shall have been made for the punishment of such delinquency, shall be a misdemeanor, punishable as herein described." Now, it is not sufficient that a party omits to perform his duty, to maintain an indictment under that section; otherwise, as I argued to the court on the admissibility of certain evidence, if a mere omission to perform a duty was to subject the party to an indictment, why, any individual short of perfection, would be liable to indictment every day. The judge of a subordinate court, who was decided by the court above to have given a wrong construction to a statute, would have omitted to perform his duty, and would be liable to indictment. Now, in this case, Carlin was unfortunate in not being able to return that property the moment it was demandable by law. He used every exertion, and worked night and day to get it, and finally succeeded in getting it, and did return it. Now, Mr. Jones seems to have followed this case with most astonishing pertinacity, and if some of our novel-writers could only select him as their hero, a much more entertaining book might be written than we sometimes find published. He wound up his opening ad dress to you by telling you, in a very patriotic strain, that whatever might become of this case, the people had done their duty. Now, we all believe in the right of the people to perform their own duty, to elect their own officers, and carry on their own institutions; but it is the first time I ever heard it stated in a court of justice who the people were. This gentleman has been at work on this case for some six months; scarcely anybody else has done anything in it except himself; but he tells you the people--otherwise himself— have done their duty, no matter what becomes of the case. Now, I do not doubt that Mr. Jones is a very strong man, or that he is a very peculiar and distinguished man; but he must be a very multitudinous sort of animal, if he is entitled to the designation of "the people." This reminds me very much of a certain constable, I believe, in Philadelphia, who had suffered an assault and battery of a very severe character, which had been inflicted on him by an old acquaintance, when he was in a state of intoxication. Finally, on becoming sober, the individual asked the constable, who had got him indicted for assault and battery, if he would not release him from that indictment. The constable was moved by compassion, and relented, but remarked, "Hereafter, whoever strikes me, shakes the State of the Commonwealth of Pennsylvania; and for this time I forgive you, but look out for the Commonwealth of Pennsylvania next time." Just so with Mr. Jones. He thinks that whoever interferes with his horse, invades the rights of the people of NewYork, and must be punished by indictment. Now, I do not think it is so grievous as that. As I said before, there is an ample remedy by civil suit, if Mr. Jones has suffered loss; and I do not think you will conclude that, on account of these quarrels, between Mr. Collins and Mr. Jones, the Deputy Sheriff, who had no interest in the matter at all, who was a stranger to these parties, and wholly anxious to do his duty, should be made to suffer for their animosity. He is a man whom I have known for years. Almost all connected with the courts have known him as a very efficient, honest, deserving and reliable public officer. He is, however, arraigned here on a charge which affects him seriously. After hearing all the evidence, gentlemen, I do not suppose you will hesitate one moment in rendering a verdict of not guilty; and I trust you will find it consistent with your duty to do so without leaving your seats. JOHN COLLINS Sworn. Examined by MR. STOUGHTON :— COUNSEL. You reside in the city? WITNESS.-No, sir; I cannot say exactly in the city. I am a mariner by profession at present. COUNSEL.-A son of Mr. E. K. Collins? WITNESS.-Yes, sir. COUNSEL.-Do you know this old or young white horse we have talked about? WITNESS.-I do, sir. COUNSEL.-How long have you known him? WITNESS.-Well, sir, he is the property of my wife. MR. WHITING.—It is not proper to speak of the ownership. WITNESS.-I think about two years ago I first knew him. WITNESS.-I saw a Mr. Jones that had him. COUNSEL. The summer before, where was he? WITNESS.-He was in the stable of the Neptune House, New Rochelle. COUNSEL.-Who kept the stable? WITNESS.-Captain Peck and Willis. COUNSEL.-When did you next see the horse, after you lost sight of him up at New Rochelle? MR. WHITING.-Are we to have all this? |