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Communication of the Special Counsel.

Pompey, January 14, 1831.

DEAR SIR

I enclose herewith three letters from Judge Gardner, being all that I have received from him. There seems to have been some misunderstanding between us which I very much regret. It seems that he had got the impression that the adjourned circuit was fixed for the first Monday of January; which impression was probably the cause of his leaving home so as not to have received the communications I addressed to him from Albany, the moment I had obtained Judge Marcy's consent to hold the circuit, and in season to have reached him at Rochester in time to have gone out and adjourned the court. From his last letter, I suppose it certain, that the court will not have been adjourned over, and of course must fail, unless we take one of two courses. Either procure an order of the Chief Justice, under the stat. 2 Revised laws, p. 204, sec. 24, or a special act, appointing a circuit for the second Monday of February. The objections to the former course, which have occurred to me in the short time that I have had to reflect on the subject, are theseA question may possibly arise, whether the section referred to is intended to provide for the failure of such a special court as this; a question which would arise after trial. And the question would be, whether the court, held under such appointment of the Chief Justice, would have power to adjourn, should imperious circumstances render it indispensable. I dont know that there can be a serious doubt on these questions, but an apprehension of either as a possible consequence, would render it advisable to pursue a safe course if practicable. Upon the whole, I submit to your consideration the proper course to be observed. Should you incline to an appointment by the Chief Justice, I would wish it made promptly and for the second Monday of February. But perhaps it would not be prudent to take this course, unless upon due advisement, it should be thought safe. It might be prudent to have the opinion of the Attorney-General on this subject. Should you incline to the course of obtaining a special act, I would then wish your Excellency to refer the matter to the Legislature in a manner to command their prompt attention.

Mr. Gardner's last letter mentions one circumstance before unknown to me, as to the objections to his trying the indictments in Monroe, namely-that he was district-attorney on one or both of these cases. So that the necessity of obtaining another judge for that circuit, would seem to be indispensable.

Very respectfully, I am sir,

Your Excellency's ob't ser'vt.

VICTORY BIRDSEYE,
Special Counsel.

His Ex. ENOS T. THROOP.

Letter from Judge Gardner to the Special Counsel.

DEAR SIR

Manlius, 11 January, 1831.

I have this moment finished the perusal of your report. You remark that you expect me to adjourn the Niagara circuit. I regret extremely that there should have been any misunderstanding on this subject. When you wrote me upon the subject of Judge Moseley's holding the circuit, and requesting me to adjourn it to some day to be fixed by Judge Moseley and yourself, I replied that I would attend for that purpose, and requested you to inform me by letter, by an early day, of the time agreed upon, as I contemplated a journey to the east. I had the impression, which has continued until I saw your report, that Judge Marcy adjourned the circuit until the first Monday of January. I remained at Rochester until the first day of January, and receiving no communication from you, I supposed that some arrangement had been made, by which the circuit was to be held at the time to which it then stood adjourned. My own misapprehension as to the time, and no reply having been received to my letter, are the causes of this unpleasant mistake. I regret its occurrence the more as it may delay you in the discharge of duties already sufficiently embarrassing.

A special act of the legislature may of course be procured fixing the circuit in February. And perhaps this may be the only inconvenience resulting from this error.

I observe your report is dated at Albany. I have thought it probable that you might have been there when I wrote you, and directed my letter to you at Pompey.

In relation to the Monroe circuit, should you be able to procure the attendance of a judge, it would not be necessary that he should reach Rochester until late in the second week, when your causes could proceed without interruption. You are aware that I was district attorney when the bills were found in that county, and my name is attached to one, if not both of them, in that character. There would be an obvious impropriety in my presiding at such trial, independent of the considerations I suggested to you in my former letter. Yours, very respectfully,

VICTORY BIRDSEYE, Esq.

DNE

A. GARDNER.

IN ASSEMBLY,

January 17, 1831.

REPORT

Of the Select Committee on the memorial of the Common Council of the city of New-York, in relation to the office of collector in said city.

Mr. Livingston, from the select committee to which was referred the memorial of the common council of the city of New-York, relative to a law authorising the appointment of collectors in said city,

REPORTED

The collector of taxes for the 13th ward of said city, immediately after his election, entered upon the discharge of his duties; but by reason of severe indisposition, soon became disabled from proceeding therewith. No hope is entertained of his speedy recovery; and it has been deemed necessary by the corporation of the city, to appoint another person in his place, to act as collector of the ward, and complete the duties of such office for the remainder of the year. The Revised Statutes, (vol. 1, 399,) provide for the appointment of a new collector under such circumstances, by the supervisor and two justices of the town or ward; but there being no two justices belonging to the 13th ward, or to any ward in the city of New-York, doubts are entertained of the sufficiency of the law to meet the present or any similar case occurring in that city. These doubts are strengthened from the fact, that authority is given to the corporation of the city of Albany to appoint a collector whenever a case similar to the one in New-York may happen. See R. Stat. vol. 1, 421.

The committee therefore deem it expedient that a law should be passed, conferring upon the corporation of the city of New-York, powers similar to those conceded to the corporation of the city of Albany, relative to the appointment of collectors. A bill has been prepared, and leave is asked to introduce the same.

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IN ASSEMBLY,

January 19, 1831.

REPORT

Of the Committee on the Judiciary, on the petition of inhabitants of the city of New-York, relative to the office of vice-chancellor in said city.

The committee on the judiciary, to which was referred the petition of sundry inhabitants of the city of New-York, praying for the passage of a law authorising the appointment of a vice-chancellor to reside in the city of New-York,

REPORTED--

That by reference to the Journals of the Assembly, it will be seen, that the subject of the appointment of a vice-chancellor to reside in the city of New-York, and whose official duties should be confined exclusively to the court of chancery, was agitated in the Legislature of 1829. Among the documents accompanying the special message of the Governor of March 2d of that year, same Journals, p. 585, there will be found a strong opinion of the chancellor in favor of the measure. In the same Journals, p. 731, there will also be found the report of the judiciary committee upon the subject, which pourtrays at length the inconveniences and evils suffered, and sets forth the necessity and propriety of legislative relief in the manner proposed, as prayed for by the petitioners. To this report, and the document above mentioned, the committee beg leave to refer.

It is the opinion of the committee, that the interests of suitors in the court of chancery, the interest of the public, and the due administration of justice, require the passage of a law appointing a vicechancellor for the first circuit. This opinion is fully confirmed by [A. No. 41.]

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