this court. After several mistrials, a jury, some years ago, found a verdict of one hundred dollars for plaintiff. My learned predecessor on this bench, Judge Buchanan, on defendant's application, set aside this verdict, and granted a new trial. Now a jury, composed of intelligent and respectable citizens, have thought proper to bring in a verdict of seven thousand five hundred dollars for plaintiff. After an attentive consideration of all the circumstances attending this remarkable case, there is no doubt in my mind, that the plaintiff is fairly entitled to a verdict for some reasonable amount of damages, viz.: First. For the unlawful and offensive manner in which plaintiff was dispossessed of his ship by defendant, by means of an illegal order obtained from the clerk of the United States court. Second. The abrupt removal beyond the limits of this State of the said ship, occasioning the plaintiff the loss of a portion of his personal effects on board. Third. The unjust persecution and incarceration of plaintiff at the suit of defendant, without any just or probable cause. However, considering that the jury has lost sight of several mitigating circumstances, the most important of which are, First. That the defendant is the son of one of the charterers of the ship; that, although he could not prove at the time that he was an accredited agent of his father, still that relation, although it will not justify his oppressive acts, will operate, however, as a mitigating circumstance-creating a presumption that his acts could not have been exclusively controlled by malice. Second. That the defendant's acts were subsequently ratified by plaintiff's employers, Chilton & Holderness, who had, by the written original contract, reserved the right of dismissing him at pleasure. Therefore, as establishing a fair proportion of the actual loss sustained by the plaintiff at the hands of the defendant, and also as exemplary damages to vindicate the offended majesty of the law, I consider the verdict to be excessive and exorbitant. At the trial of this case, the defendant labored under a very serious disadvantage. The able counsel who had during so many trials successfully struggled in his defence, was ab. sent from the State. The defendant, instead of securing the reliable services of the distinguished counsel who has so ably argued this rule on his behalf, did, in an evil hour of mistaken confidence, and inexperienced as he was in the strategy of the law, enter himself the list, single handed, against one of the oldest champions of this bar. Before a jury, and in a cause like the present one, he had as much chance of success as the retiarius with his net and spear, coping in deadly conflict with a steel clad warrior, armed with battle axe and sword. Excepting only the latter one, which is defendant's own fault, the above considerations should operate and have their due weight in support of the action made for a new trial. This court, however, is not inclined to dis regard entirely in this case the verdict of an intelligent jury; when by a legal course that verdict may possibly be reduced, and the cause. be placed before the Supreme Court upon a reasonable award of damages, when the whole matter will be supervised and finally disposed of. This case would, probably, upon a new trial, take up one-half of the jury terms of this court during another lapse of ten years, to the unjust detriment of the other causes on the jury dockets. It is therefore ordered, that in case the plaintiff, by his agent and counsel, will file, within a delay of ten days, a remittitur of the amount of four thousand five hundred dollars, and his acceptance of a judgment of three thousand dollars, then in that case let the new trial be refused. Otherwise, and on the non-compliance by said agent and counsel with the above requisitions, and in that case only, let a new trial be granted. REMARKS BY MR. BARKER. Although Mr. Barker considers that his honor, Judge Augustin, has taken a mistaken view of that part of the evidence on which he bases his opinion, that the damages allowed by the jury were excessive and exorbitant, he, conformably to the judge's suggestion, enters the he is anxious to terminate litigation, and because remittitur of forty five hundred dollars, because he does not believe that more than three thou sand dollars could be collected from the defendant. Mr. Barker is of the opinion that the damages awarded by the jury, so far from being excessive and exorbitant, should, from the testimony on record, have been for ten thousand dollars, the full amount claimed. Mistaken, inasmuch as Messrs. Holderness & Chilton were not the employers of Captain York; they never had a written contract with him, nor were they the charterers, unless they represented the Hull Flax and Cotton Mills Company; or unless, as ship brokers, they procured from that company the charter, they never had the right to dismiss Captain York at pleasure, consequently could not have retained it by a written stipulation, or otherwise. Those facts not being material, were not discussed on either trial; nor was any other than incidental testimony given in relation thereto by either party. The judge, doubtless, was led into this error from the fact of Holderness & Chilton having signed the sailing orders, and that of Thomas Holderness, of Hull, the owner of the ship, (who is a very different person from Messrs. Holderness & Chilton, of Liverpool,) having retained that right, in terms, in his original contract with Captain York, dated the 1st of January. (See page 254.) CAPT. YORK'S POWER TO MR. BARKER. NEW ORLEANS, August 2, 1849. SIR: Being about leaving Louisiana for California, I have to request that you press my claim on Richard Harrison Chilton to final judgment with all possible diligence, either in the existing suit or in such other legal proceedings as you may think best; and should a compromise be deemed expedient, you are hereby authorised to settle the matter as you may think best; to give, grant, and deliver all necessary and proper releases, and I hereby agree to ratify whatever you may do in the premises. Very respectfully, your obedient servant, In this case, his honor, Judge Augustin, having this day rendered judgment on the rule of defendant to show cause why a new trial should not be granted dismissing said rule on condition that plaintiff's counsel should enter a remittitur of forty-five hundred dollars of the verdict for seven thousand five hundred dollars rendered by the jury. The plaintiff's counsel and agent hereby remits four thousand five hundred dollars of the said verdict. The said counsel and agent hereby agrees that the said verdict shall be considered as for three thousard dollars, and prays that judgment be rendered against R. H. Chilton in favor of plaintiff for that sum. JACOB BARKER, Counsel and Agent for W. B. YORK. THE WAR LOAN. To the Honorable Court of Claims of the United States, sitting in Washington, D. C. Your petitioners, Richard R. Ward, Fitz Green Halleck and Jacob Little, of New York, assignees of Jacob Rarker, respectfully represent that on the second of May, 1814, the said Jacob Barker became a subscriber to the first loan, denominated the ten million loan, made under the act of Congress passed the 24th of March, 1814, chap. 29. The terms of the contract upon which the said loan was taken, are fully set forth in the following correspondence between the said Jacob Barker and the Hon. G. W. Campbell, Secretary of the Treasury of the United States, to wit: WASHINGTON, 4th month 30, 1814. "Respected friend: I will loan to the gov ernment of the United States five millions of dollars, receiving one hundred dollars in six per cent stock for each eighty-eight dollars paid, and will pay the money in the proportion, and at the period mentioned in the advertisement of the 4th of April, to their credit, in such banks of the United States as may be agreeable to thee. "On the payment of each instalment and satisfactory assurances for the payment of the others, funded stock to be issued. It being understood and agreed that if terms more favorable to the loaners be allowed for any part of the twenty-five millions authorized to be borrowed the present year, the same terms are to be extended to this contract. "The commission of one quarter of one per cent. mentioned in the advertisement to be allowed me on the amount loaned. "With great respect and esteem, I am thy assured friend, "JACOB BARKER. "The Hon. G. W. CAMPBELL, "Secretary of the Treasury." TREASURY DEPARTMENT, May 2d, 1814. SIR: The terms on which the loan has been this day concluded, are as follows, viz: dred dollars in stock; and the United States Eighty-eight dollars in money for each hunengage, if any part of the sum of twenty-five millions of dollars authorised to be borrowed by the act of the 24th of March, 1814, is borrowed upon terms more favorable to the lenders, the benefit of the same terms shall be extended to the persons who may then hold the stock or any part of it issued for the pres ent loan of ten millions. Your proposal of the 30th April, for five mil lions of dollars of the loan having been at the above rate, or at a rate more favorable than the above to the United States, has been accepted; and you will please to pay, or cause to be paid, on the 25th day of the present month, into the bank or banks you have named, or into such as you shall name to the Secretary of twenty-five per cent. or one-fourth of the sum the Treasury, on the receipt of this letter, above stated, pursuant to the notification from this Department of the 4th April last, and the remaining instalments on the days fixed in the said notification. You will be pleased, also, on or before the 25th of May, to furnish the cashier or cashiers of the bank or banks, where the payments under your proposal are to be made, with the names of persons in whose be half the proposal has been made, and the sums payable by each. The commission of one-fourth of one per cent. will be paid from the Treasury, after the payment of the first instalment on the 25th day of the present month. I am respectfully, sir, your obedient servant, JACOB BARKER, Esq., New York. Your petitioners further represent that the said Jacob Barker furnished large sums of money to the government, paying in specie, or its equivalent, receiving stock therefor pursuant to the said contract, of which stock there were three millions four hundred and forty-six thousand one hundred and three 57-100 dollars held by sundry individuals and institutions on which he was entitled to the benefit of the condition, near three million of which was held in trust for his account, and the residue had been sold reserving the benefit of the condition; for the amount held by each, your petitioners refer to the books of the United States loan offices, the use of which they invoke. Your petitioners further represent that the Secretary of the Treasury, on the 31st of Au gust, 1814, under the said law of 24th March, 1814, entered into another contract with divers persons and especially with Dennis A. Smith, of Baltimore, for a further loan, payable on the 20th September, 10th of October, 10th of November and 10th of December of that year, one-fourth each, which was received in the notes of the banks of the District of Columbia and of Baltimore, and that the said banks were then in a state of suspension and their notes depreciated from ten to twenty-five per cent. dependent on the dates when each instalment was received; for each eighty dollars of such notes received, the Treasury of the United States issued one hundred dollars stock. per cent. on the original stock, which was the mere nominal difference between the rates of the two loans, while the real difference was about three times that amount; and to make the injustice of this proceeding still more palpable, the Secretary of the Treasury refused to issue this supplemental stock to the persons who were the holders of the original stock on the 31st August, 1814, finally insisted on their surrendering the certificates of stock which were held by them, although there was not any reference to the condition on the face of said certificates, and after a long delay issued it to those who happened to hold them at the time they should be thus surrendered. In the judgment of your petitioners this was a manifest departure from the terms of the contract, which greatly embarrassed and injured the said Jacob Barker in the large interests affected by this unsound decision. Nevertheless the parties who might have profited by this advantage, in most cases proved to be sufficiently just to hand over to him this supplemental stock of ten per cent. issued on that portion of the loan on which he was entitled to the benefit of the condition. The only claim, therefore, now insisted upon is the allowance for the difference between the NOMINAL and REAL value of the paper currency received at the Treasury. It is true that the government acted oppres sively towards the said Jacob Barker in other important respects and thereby inflicted upon him the most serious and fatal injuries, in evidence of which your petitioners refer to the letter of Nathan Lufborough, Comptroller of the Treasury, dated 24th November, 1814, addressed to the Secretary of the Treasury and by him adopted, in words and figures following: "TREASURY DEPARTMENT, "Comptroller's office, Nov. 24, 1814. "SIR: I take the liberty of enclosing, for your approbation, forms of certificates proposed to be printed and issued to the holders of stock in the ten million loan, pursuant to the opinion of the Attorney General enclosed to me in your letter of the 19th instant. Your petitioners further represent that they have been informed, and believe that further portions of the said twenty-five millions loan were negotiated by the Secretary of the Treas ury subsequent to the 31st of August, 1814, for which depreciated paper was received, giving one hundred dollars six per cent. stock for "These forms have become necessary, in oreach eighty dollars of such depreciated paper. der to carry into effect that part of your letter Your petitioners insist that upon these facts, to me of the 22d of this month, which requests by virtue of the contract made by Jacob Barker, that every proper facility may be afforded to as aforesaid, the holders of funded stock in the the holders of certificates in the above mentionten million loan, became entitled on the 31st ed stock, 'to establish hereafter the identity of August, 1814, to an amount of supplemental the supplemental stock,' (now about to be issustock, equal to the difference between eighty-ed to them,) and its connexion with the ten eight dollars in money paid for it, and the value of eighty dollars in depreciated bank paper paid by the subscribers for the second loan. But the Secretary of the Treasury, estimating the payments for the second loan as so much money, and taking no account of the depreciation of the currency received, allowed supplemental stock only to the amount of ten million loan. The designation, in writing, on the face of the certificates to be issued for the supplemental stock, is made for no other purpose than that of enabling the holder, if he chooses, to preserve its identity and its connexion with the primary stock. The manuscript addition made on the face of the condition intended to be issued in lieu of the origi nal stock, of the ten million loan now in ci lation, is intended-1st, to guard the public against imposition, by preventing more supplemental stock from issuing, in any case, than is actually due; and, 2d, to give notice to subsequent purchasers of the stock, that the stipulations contained in the contract between the Secretary of the Treasury and the original subscribers to the loan had been fulfilled, or in other words, that everything relating to that contract, so far as respected the stock in existence, was deemed at the treasury to be settled and closed. There is nothing in this that can have a tendency 'to impair the rights or embarrass the remedies' of the public creditors under the ten million loan for further issues of supplemental stock. under them, to the loan of ten millions of dollars of the 2d May, 1814. "The additional stock in question is to be issued to the persons holding, at the time of application for the additional stock, scrip certificates, or funded certificates of stock of the aforesaid loan of ten millions of dollars, and not to those who may have held the said certificates on the 31st of August last, the day on which a part of the loan for six millions of dollars was taken, unless they shall also hold them at the time of application for the additional stock. "On the original certificate, thus surrendered, there must be an assignment by the proprietor, or his attorney, agreeably to the forms herewith, marked B. You will perceive that the accounts of the old stock are to be closed on your books and new accounts opened, corresponding with the alteration in the funded certificates hereafter to be issued, a supply of which will be transmitted to you by the Register of the Treasury. "You will make out duplicate abstracts of the certificates of supplemental stock issued by you, agreeably to the enclosed form, marked C; one of which abstracts you will forward to this office quarter yearly, and file the other in your office. "No exaction is made from them of any release whatever of their rights or claims in this respect. Their rights will still remain with themselves, and their remedies with Congress. The notification, on the face of the certificate, is nothing more than a simple statement and exhibition of a fact which does exist, and which ought to be known, as well to the subsequent purchasers of the stock as to those who now hold it-namely, that the supplemental stock, stated on the face of the certificate to have been issued, was deemed at the treasury to be a full and complete execution of the original contract on the part of the govern "It is proper to apprize you, that the Attorment, so far as regarded the amount of stock ney General has given an opinion to the Secreto be issued under that contract. This inform-tary of the Treasury, setting forth, among other ation is already in possession of the agent of things, that the condition in the letter of the the present holders of the stock, or a great Secretary of the Treasury, of the 2d May, 1814, portion of it. To keep it from subsequent to the subscribers for the ten million loan, holders, who might purchase too under the 'attached as soon as the second loan was made, impression that still further benefits are to (the loan of August 1814;) that, on the hapattach to the stock, might subject the treasury, pening of that event, it (the contract) no longer and with great reason, to imputations which it remained open and executory, subject to all the has hitherto been free from, and which it never variations in price which might mark subsewill, I trust, be justly liable to, I have deemed quent loans, until the whole twenty-five milit to be my duty to be thus particular in lions should be exhausted.' This opinion has explaining to you the causes for my making been adopted at the treasury, and the supplethe certificates of stock in the forms you see mental stock, now authorized to be issued, is them, and I hope this will be the last time I deemed to be in full of all demands upon the shall have occasion to trouble you on this very government for further issues of stocks in the unpleasant business. ten million loan, under the contract above mentioned. It is not thought necessary, however, to take any release to this effect from the stockholders, on delivering them the supplemental stock. "Without, &c., "NATHAN LUFBOROUGH, "Acting Comptroller. "Hon. SECRETARY OF THE TREASURY." And to another letter from said Comptroller, dated 30th November, 1814, addressed to the Commissioners of Loans, from which the following extracts are taken : "CIRCULAR TO CERTAIN COMMISSIONERS OF LOANS. enjoyed by those who should hold the stoke whenever more favorable terms should be allowed to any subsequent subscriber for any part of the twenty-five millions. And further, to accumulate hardship and oppression upon the first contractors, of whom Jacob Barker was the most important, the government finally determined to destroy the effect of the condition by applying to Congress for authority to make another loan under a different law. Before one-half the sum authorized to be borrowed by the act of 24th March, 1814, had been obtained by the government, the act of 15th November, 1814, chap. 4, not only authorized a new loan, but expressly empowered the banks of the District of Columbia, then in a state of suspension, to take any part of it. They accordingly did subscribe, and paid their subscriptions in their own depreciated paper. This new loan was made when only about onehalf of the twenty-five million loan had been borrowed, a great portion of which yet remains unnegotiated. The effect of this proceeding was to avoid the condition attached to the first loan under the act of the 24th March preceding; but it was evidently a mere evasion which the power of the government rendered effectual to destroy the rights of the parties interested, so far as depended on the market value of the stock, but which no human authority or ingenuity can make consistent with the terms of the original contract, and the sanctity of the national faith. Your petitioners further state that the said Jacob Barker, in the first instance, and themselves, as his assignees, afterwards, repeatedly applied to Congress for relief, but without effect. At the second session of the 16th Congress, the Senate Committee on Claims made report No. 56 adverse to the claim. At the first session of the 17th Congress the same Committee made Senate report No. 40, and the application was rejected by the Senate. Reference is made to these reports to show that the grounds assumed therein are wholly untenable in law, and in fact. Not convinced by the reasoning of these honorable committees, but still satisfied of the substantial justice of the claim asserted, the petitioners again and again presented their application to Congress, but the same was not definitely acted upon until the second session of the 32d Congress, when, in the House of Representatives the Committee on the Judiciary made report 140, accompanied by bill No. 793, both of which, with all the accompanying papers, were, by resolution of said House, referred to this honorable court for investigation. Your petitioners further state that on the 10th of April, 1820, the said Jacob Barker made an assignment of this claim, for the benefit of his creditors, to your petitioners and Jesse Hoyt. The latter gentleman declined the trust. No other person, except the said Jacob Barker and his creditors, have any interest whatever in the claim herein presented. In consideration of the premises, and in pur suance of the reference made by the House of Representatives, your petitioners pray that the court will investigate the demand herein set forth; and believing themselves entitled, as assignees of the said Jacob Barker, to an allow ance on three millions four hundred and fortysix thousand one hundred and three 57-100 dollars, equal to the difference between lawful money and the depreciated paper received under the loan of 31st of August, 1814, which said difference was due in stock bearing an interest of six per cent. per annum from the time the money was received by the Treasury of the United States, they pray that the just amount of this allowance may be fairly estimated and reported to Congress for payment. BROWN, STANTON & WALKER, THE EUROPEAN WAR. Humanity demands an immediate peace, its importance to the manufacturing and commercial interests of the world is not questioned. The war was commenced by France to cement and perpetuate the Napoleon dynasty, and by England to protect her East India possessions. The idea that it was embarked in from sympathy for Turkey is preposterous. Christians who felt so much sympathy for the oppressed Greeks, would not war in support of infidelity from any such feeling. The object of France has been attained, while the effect of the war has been to transfer the balance of power from Russia to France. The humiliation of Russia, if that were possible, could not restore to England the prestige she has lost in this war. Money and men are the great elements of war. The scrupulous fidelity Britain has preserved in all her stock operations has enabled her paper mills to supply the one, of the other she is destitute; her people will not enlist in her armies for foreign service, they prefer to die at home, and the recruits her money procures from the miserable, petty states she has subsidized, cannot restore the glory she has lost. The use of steam navigation has deprived her of the superiority she enjoyed on the ocean for more than a century; she has to submit, as mortifying as it is, to being considered a secondrate power: hence, the sooner she falls back on her manufacturing and commercial interests the better for her, therefore a general peace may be expected without another year's cam |