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straw; that about two years ago he met prisoner in the Bowery; it was at the time of the Haerlem races; prisoner spoke to witness, and said, am I not a relation of yours? witness replied, I don't know, prisoner said, I am, I married Caty Secor. Upon cross examination witness admitted that he and prisoner had had a quarrel respecting witness calling prisoner Tom Hoag; that the above conversation was after the trial in the Justices' Court; and witness when asked if he was at the trial, said he was not, though when interrogated particularly, whether he was not in the court-room at the time, admitted that he was.
Samuel Smith was called merely as to the character of one of the witnesses on the part of the prosecution, a Mr. Knapp, and testified that he bore an unexceptionable character.
Abraham Wendell testified, that he knew one Thomas Hoag, in the latter end of the year 1800: he was at Haverstraw, that he had been very intimate with him, and knew him as well as he knew any man; that he had worked with him; that he had breakfasted, dined and supped with him, and many a time had been at frolics with him; and that prisoner at the bar was the same man; that he had no doubt whatever about it; that about a year ago witness being in this city, was told by some persons, that Hoag had beat the Haverstraw folks in an action, wherein his identity had come in question; that witness told them he could know him with certainty; that they said, they would send him down to him, that day; that witness was aboard his sloop, saw prisoner at the distance of a hundred yards coming down the street, and instantly knew him, prisoner came up to him and said immediately, Mr. Wendell I am told you say you will know me; witness was as confident, prisoner is the person, as he was of his own existence.
Sarah Conklin testified, that she lives in Haverstraw; that in September, 1800, a person calling himself Thomas Hoag was at witness's house, was very intimate there, used to call her aunt, is sure prisoner is the person; never can believe two per'sons could look so much alike; Hoag and prisoner talk, laugh and look alike, would know Hoag from among a hundred
people by his voice; prisoner must be Thomas Hoag: had not seen prisoner since he left Haverstraw till to-day.
Gabriel Conklin testified, that he lived in Haverstraw; that he knew Thomas Hoag; that he was at witness's house in September, 1800, and often afterwards; prisoner is the same person, unless there can be two persons so much alike as not to be distinguished from each other; prisoner must be Thomas Hoag; Thomas Hoag had a scar on his forehead, and a small scar just above his lip, prisoner had these marks.
Further testimony in behalf of the prisoner.
James Fuqar testified, that he had known foseph Parker the prisoner at the bar for seven years past; that he had been intimate with him all that time; that they had both worked together as riggers until Parker became a cartman; knew Parker when he lived in Captain Pelor's house; never knew him absent from the dity during that time for a day, excepting when he was working on board of one of the United States' frigates about a week at Staten Island. In the year 1799, prisoner hurt himself on board the Adams frigate, and he then went to his father's in Westchester county, and was absent near a month; he was very ill when he left town; witness went with him and brought him back again; he was not then quite recovered; recollects perfectly Parker and some other company passing Christmas eve at witness's house, the year that Parker lived in Captain Pelor's house, which was in 1800.
Susannah Wannell testified, that she had known prisoner for six years past; that he married witness's daughter; knew him when he lived in Captain Pelor's house; Parker's wife was then ill, and witness had occasion frequently to visit her; saw, prisoner there almost daily; prisoner, excepting the time when he was first sick and went to his father's in Westchester, has never been absent from the city more than a week since his marriage with witness's daughter.
It was agreed between the attorney general and the counsel for the prisoner, that the prisoner should exhibit his foot to the jury, in order that they might see whether there was that scar
which had been spoken of in such positive terms by several of the witnesses on the part of the people.
Upon exhibiting his feet, not the least mark or scar could be seen upon
either of them. In further confirmation of prisoner's innocence, there was then produced on his behalf,
Magnus Beekman, who testified, that he was Captain of the city watch of the second district; that he was well acquainted with the prisoner, Joseph Parker; that he, Parker, had been for many years a watchman, and had done duty constantly upon the watch; that witness upon recurring to his books, where he keeps a register of the watchmen and of their times
service, found that prisoner, Joseph Parker, was regularly upon duty as a watchman, during the months of October, November and December, 1800, and of January and February, 1801, and particularly that he was upon duty the 26th of December 1800.
The jury without retiring from the Bar, found a verdict of NOT GUILTY.
SHOWING THE ORDER AND STRUCTURE OF A
LIBEL OR DECLARATION,
Tihil dictum, quod non prius is a maxim, as true as it is
general. So that to enlarge or say any thing in this dis course, more than what others (of great learning and practice,) have said before, is a thing I am not at; neither would I have any so far mistaken in me, as think me guilty of so much vainglory and ostentation. Neither were it possible for me (or any else, as I think) to reduce this discourse to a better method than Wesembeckt has done, whose words I shall insert, with some additions out of other authors, which will render this discourse so compleat, as that the meanest capacity (our insipid proctors, I mean of) may form a libel, without inspecting their precedent books; which they can no more be without, than a cripple without his crutches. I question not but the learned advocates are so well stored with discourses of this nature, that this can be of little use to them.
1. What a libel is.
5. What is the efficient cause of a libel. 6. The matter of a libel. 7. The form of a libel; deduced also from a syllogistical
argument. 8. The next, and not the remote matter, ought to be expressed
in a libel. 9. The end of a libel.
A libel is said to be a diminutive, a libro, from a book; whence formerly a paper was offered: In general it signifies every writing: figuratively the matter is put for the thing contained in it. But properly in this argument, a libel is taken for the writing which contains the action: * Or a libel is nothing else but a fit conception of words, setting forth a specimen of the future sute. † According to Lanfranc. (c. quoniam. de petition. n. 7.) it is defined the lawyer's argument.
2. It is said to consist of three parts. (Scil.) 1. The major proposition; which shows a just cause of the petition. 2. The narration, or the minor proposition. Whereby is inferred (in the species of the fact propounded) that there is cause just for the petition. 3. The conclusion of the conclusive petition, which conjoins both the propositions, and includes the minor in the major. # A libel therefore is a practical and judicial syllogism, as it were. Though Speculator de Libelli confectione, Sect. quid Libellus, n. 3. recites its parts somewhat otherways; for in the first place, he puts the cause of the libel, which is the major proposition: In the second place, the obligation, which is the minor proposition; and in the third place, the action, which is the conclusion: For the petition itself is said to be the action: the conclusion consists in the petition, and not in the words related. And this is the chief part of the libel, which ought especially to be regarded in civil actions; not so in criminal actions or causes, because in them there needs no conclusion. By this the * plaintiff concludes, justly desiring
* Alciat. in prax. fol. 18. Speculator de libell. conf. sect. 1.