7Q. Why was not this memorandum of an agreement signed by Judge Trumpbour?

A. The Canal Commissioners requested that an agreement should be made to re-survey that part of the Erie canal which Judge Trumpbour had surveyed, to produce uniformity in the surveys and maps. I supposed that that paper contained our exact understanding. It was intended to be engrossed and signed. It was the agreement between us. The request of the Canal Commissioners alluded to in the beginning of this answer, was made subsequent to the writing of the above memorandum of an agreement.

8Q. Have you any other memorandum of Judge Trumpbour in relation to the said surveys; if so, produce it?

A. I have, and now here produce it.

[Marked Exhibit Z, and read in committee, June 23, 1832.] 9 Q. In whose hand writing is this second memorandum?

A. The first page is in the hand writing of Judge Trumpbour, the residue of the writing is in my hand.

10 Q. When and where was that memorandum written? A. I think it was in Judge Trumpbour's room, a day or two after the foregoing memorandum herein first mentioned was written.

11 Q. Did you at any time, and when, agree with Judge Trumpbour as to a re-survey of that part of the Erie canal that had been surveyed by him, so as to make it conform to your survey?

A. We did make such an agreement, at or about the time of writing the last memorandum, marked Z; the said memorandum being an offer, and not an agreement.

12 Q. What was the substance of the agreement spoken of in your last answer, and why was it not reduced to writing?

A. The substance was, that I was to re-measure one-half of the line surveyed by Judge Trumpbour. This agreement or offer on my part was stated to Col. Bouck, which he understood and recapitulated to us. At that time I supposed it would be reduced to writing. Judge Trumpbour, however, after we had been in Col. Bouck's room some time, stated, as I recollect, as follows: that he should have to re-survey the line that he had once surveyed, and it would be inquired of him why he did so; that he would not know what answer to make to such inquiry, and that he would not agree to it; and he took his hat and left the room.

13 Q. What were the inducements that prompted you to make that offer?

A. It was done to enable Judge Trumpbour to get its [his] contract with the Canal Commissioners, and to produce entire uniformity.

Cross-examined on the part of Judge Trumpbour.

14 Q. At the informal meeting of the Canal Board did you understand the Surveyor-General to express an opinion that a full description of the survey ought to be given in writing in the returns to be made with the maps?

[This question was objected to.]

No. 335.]

A. I understood him as suggesting that an additional copy of the field-notes should be added to my field-book

15 Q Did you propose to Judge Trumpbour, after this informal meeting, to have a written description of your survey made, conforming as near as practicable, to the plan of description submitted by him?

A. I never did. There was a proposition to add an additional of the field-notes.

copy

16 Q. Did or not Judge Trumpbour propose to the Canal Board, at the time of the informal meeting, to make the calculations of the outlines of your survey, so far as it had then been made, for the purpose of giving such written description?

[This question is objected to.]

A. I have no knowledge of his ever having made a proposition of that kind.

17 Q Was or not the memorandum marked Exhibit X, and produced by you, any thing more than a proposition or an agreement between you to be considered?

A. I considered it the agreement, the arrangement and understanding between us.

18 Q. Was or not that memorandum prepared by you before you went to Judge Trumpbour's room, at the time you first shewed it to him?

A. My recollection is, that it was written in Judge Trumpbour's

room.

19 Q. Was or not that memorandum prepared by you in consequence of the suggestion of the Surveyor-General at the informal meeting of the Canal Board?

A. The part of it that describes the method of making the field book, in which it is said, the lines shall be drawn across the book near the top, instead of the centre, as it was in the field book exhibited, was to give space for an additional copy of the field notes. The Surveyor-General did not say there must be an agreement. The memorandum was not prepared at the Surveyor-General's suggestion, except the part of it above alluded to.

20 Q. Was or not the proposition contained in that memorandum made by you, upon the supposition that Judge Trumpbour's survey and the description thereof should be completed upon the plan he had conimenced?

A. It was made upon the supposition that it should conform. exactly to my survey, except as stated in the last answer.

21 Q. Did not you and Judge Trumpbour attempt to make a written description of your snrvey, conforming to his plan of field book?

A. We did not.

22 Q. Did you not shew that memorandum to Mr. Seymour, Canal Commissioner, and if so when for the first?

A. I shewed it to him about the beginning of the present month, and I think he never saw it before.

23 Q. Did you not, about the time of shewing that memorandum to Judge Trumpbour, state to him, that if such agreement was [A. No. 335.]

19

entered into between you, Mr. Seymour would approve of it, and that he had assented to be an umpire between you?

A. I never did.

24 Q. Did you not state to Judge Trumpbour that your object in proposing the agreement, as stated in the memorandum, was to have the maps and descriptions conform, so that the difference in the surveys would not be perceptible? [Objected to.]

A. I never made a statement of that kind that I recollect.

25 Q. Did you not state to Judge Trumpbour that you would draw the outlines of the State property upon your map, so as to give them the appearance of conforming to his survey?

A. I never did.

26 Q. Did not Judge Trumpbour decline to enter into an agreement with you upon the basis of the terms contained in the memorandum marked exhibit X?

A. I understood him as consenting to the conditions fully, at the time of making the interlineations. I never understood him as objecting to the agreement at all.

27 Q. Did not Judge Trumpbour express to you an entire unwillingness to submit himself to the umpirage of Henry Seymour. A. He did not.

28 Q. Was there any thing said between you and Judge Trumpbour, in your interview at Kingston, about Mr. Seymour's being umpire between you in relation to any difficulties that might arise?

A. I think there was not. It was first introduced in this paper last referred to.

29 Q. Was there any thing said at the interview at Kingston about Mr. Seymour retaining any part of the money to be paid for the work?

A.

There was not. It was first introduced in the paper last referred to.

30 Q. Was there any thing said in your interview at Kingston about making the field notes correspond as nearly as the different methods of doing the work would admit?

A. At Kingston, Judge Trumpbour agreed to conform to my

survey.

31 Q. Have you any other answer to make to the last question ? The counsel propounding the 31st question puts it in the following form:

32 Q. Can you give a more direct or explicit answer to the 30th question? (The 32d question is objected to.)

A. I supposed his survey would conform exactly to mine, and in the notes and field books; and I further answer to the 30th question, that there was not any such conversation.

33 Q. In what particulars is the memorandum marked exhibit X a modification of the agreement made between you and Judge Trumpbour at Kingston?

A. The modification consists in the attempt to make the surveys that had been made correspond, and in other respects goes more into detail, and may also include the arrangement about the additional copy of the field notes. The remaining part of the memorandum was intended to guard against any difficulties which might otherwise

arise, as difficulties had already occurred with respect to the verbal understanding at Kingston.

34 Q. In what respect is the memorandum marked exhibit X more particular than the agreement made at Kingston in relation to the matters that wero the subject of that agreement?

[Objected to, on the ground that it is in substance already answered.]

A. It is more particular in describing the method of the survey; and by that I include the field notes and maps.

35 Q. If that memorandum was understood to be the agreement between you, and difficulties had already arisen in relation to the agreement made at Kingston, why was it not signed by the parties?

A. There was a subsequent difficulty rose, as I have already related. It was not signed, because it was not engrossed. I supposed it would be engrossed and signed; before that was done a difficulty rose about the re-survey, which prevented the signing of it. The second agreement, offer, or paper, marked Z, was intended to modify or alter the original agreement only as to the re-survey.

36 Q. Was Judge Trumpbour ever requested to sign the memorandum marked X, or an engrossed copy of it?

A. I think he was not.

37 Q. Was any copy of it ever made for signature ?

38 Q. Was the arrangement you have spoken of, based upon memorandum Z, intended to supersede or vary any part of the agreement purporting to be contained in memorandum X?

[This question is modified at the request of the witness, as follows:]

39 Q. Was the arrangement you have spoken of for re-surveying the line of the canal which had been surveyed by Judge Trumpbour, intended to supersede or vary any part of the agreement as purporting to be contained in memorandum X?

A. It would some parts of it. It was so intended.

40 Q. Was the arrangement for re-surveying spoken of, intended to supersede the agreement as contained in memorandum X? A. It was intended to vary some parts of it.

41 Q. Have you not several times stated in the presence of this committee, that the arrangement made for resurveying, was not intended to supersede or vary the agreement contained in memorandum X, except so far as it related to the re-survey?

[The question was objected to on the ground that what the witness has several times said, ought not to be the ground of a question.

The question is deemed admissible.

Judge Hogeboom thinks the question inadmissible.]

A. I believe I have so stated. When I spoke of the survey, I meant to include the field book and maps.

42 Q. After the informal meeting of the Canal Board, did you have several meetings with Judge Trumpbour, with a view of making some arrangement in respect to the survey?

A. I did.

43 Q. In those interviews, did you or not, express great dissatisfaction with the Surveyor-General for having required a written description of the survey, and for having given a preference to Judge Trumpbour's survey over that adopted by you?

A. I did not. I never understood the Surveyor-General's opinion as stated in the question.

44 Q. If the Canal Commissioners required a re-survey of that part of the canals surveyed by Judge Trumpbour, why was not that Etated in the memorandum of agreement, marked X, proposed by you to him, as you say at their request?

[This question is objected to on the ground that it is an attempt to argue with the witness.]

A. The request of the Canal Commissioners was not made until after the memorandum X was written.

45 Q. At the time of the interview with Col. Bouck, when the agreement for a re-survey was stated, did he know of, or was, or had any thing been said to him about the agreement expressed in memorandum X?

A. I think he had previously been informed of the understanding between Judge Trumpbour and myself, as expressed in memorandum X.

46 Q. Did, or not, Judge Trumpbour shortly after you had showed to him memorandum X, prepare and deliver to you by way of proposition, or otherwise, a memorandum of an agreement, upon the subjects contained in memorandum X, but differing in its terms and conditions?

A. I have no recollection of his having done so; I think he took a copy of this agreement.

47 Q. If he took a copy, why was it not signed?

A. I am not perfectly sure in relation to his taking a copy. 48 Q. When and how did you get possession of the memoran

dum marked Z?

A. I must have retained it about the time it was made, for I have seen it occasionally since.

49 Q. Was that memorandum ever submitted to you as a proposition for an agreement?

A. I think it was.

50 Q. When, where, and by whom was it first submitted?

A. I think it was first submitted at the time it was written, by Judge Trumpbour, at his room, where I was present, and wrote my memorandum at the same time, on the same paper.

51 Q. Is not that memorandum written in pencil mark, and does not the paper contain other pencil memorandum not connected with the proposition?

A. The memorandum is written in pencil mark, and all the writing and figures on that paper are connected with that negociation, I think.

52 Q. Was there in the course of that negotiation, a proposition made by Judge Trumpbour, to divide the survey, by having one take the Erie canal at three thousand dollars, and the other take the other canals at two thousand?