WILLISTON TYLER, SWORN.-Saw Foster on the 17th of Sept. last at Foster's house; saw Waters at the forge same day; went up from forge with party spoken of; they went up to the point (say two miles) in company; Wood and Chase together; Waters alone; all making to this point of land; W. and C. went ashore; Stimpson spoke "There goes Foster;" witness looked and saw a man there that he (witness) called Foster; they rowed round the point out of sight of the rest; Foster was walking a little stooped and sideways; rowed thirty yards, heard report of a gun; heard Wood or Chase hallo "come back as quick as you can;" they went back, and Chase said they had a dead man there; Waters's head and shoulders were in the water and his legs in the canoe; did not examine his body; two holes in the shirt under the arm; examined guns of the other witnesses; saw no gun in Foster's hands; bushes two feet high; was five or six rods distant when he saw him; witness and Wood went to Foster's house; found Johnson on the hill after this in a house occupied by Wood and Chase carrying in some hay; Johnson lived with Foster; this was four miles from the place of execution; did not see Foster after report of gun until at Foster's house same day, four miles from point.

Cross-examined-Went to Foster's house on the way from point; found him there lying on the bed; did not know Foster until the night before; he was a stranger until then; Foster may have passed eight or ten feet in witness's sight while they were going along in the boat; there were bushes there but not so high as elsewhere; some were ten feet high; saw side of his face; judge of him partly from his general appearance; he was without a hat; was baldheaded; he was leaning the same way they were passing; stooped; did not see his hands; Foster was between two and three rods from the point which was to the left; when they found Foster he was lying on a bed; saw his gun in a corner of the room; does not know whether it was loaded or not; was nothing peculiar in Foster's dress; witness was not rowing when he saw Foster in the space; neither saw him before nor after he was at that point.

Direct testimony resumed.-Foster discharged and reloaded his gun before he started; this was about one quarter of a mile from Wood's house; Foster's house is on the right-hand side of outlet; and he saw him at the other side of the outlet; the nearest way to get to that place from Foster's house was to cross the bridge at the forge; had a conversation with Foster after he fired the gun and reloaded; witness inquired "have you shot the deer?" "No, that d-d Indian," showing on his wrist a scratch and blood; "have had a squabble with the Indian and he cut this spot; and if it had not been for Mr. Wood and Chase the Indian would have killed me; go either forward or behind! I shall not go fishing."

Cross-examined.-The place called the forge has not been used in many years; this is about eighteen rods wide; they talked of going to the Fourth lake; lives in Leyden, Lewis county; the houses were dwelling-houses erected by some past settlers.

WILLIAM S. WOOD, SWORN.-Knows the prisoner; knew the Indian killed; was with Chase; did not see Foster there (on the point) that day; went ashore to get traps; heard the report of a gun; the Indian was killed; saw no person in the bushes; heard no noise; was very busy; got into the boat about as quick as usual; was about three or four yards from Waters when shot; Waters's boat lying still; witness was in his boat when the gun was fired; did not see Foster at all up there; saw him at home lying on his bed after the killing; also before that at my house in the morning; it was three fourths of an hour from the time Foster left my house in the morning to the gun report; not far from 9 A. M. when gun was fired; about four miles from my house to the point.

For the prisoner.-The counsel for the defence here offered to show that the premises where the Indian was killed, were leased on the 4th of May, 1830, by Caleb Lyon, for himself and as agent, to David and Solomon Maybee; that the Maybees went in and occupied under the lease, until the 26th of February, 1832; at which time David Maybee assigned the lease for the sum of ten dollars, to the defendant, who took possession and occupied under said lease until the alleged murder was committed; at which time his right had not expired. Judge Denio said that the defendant was presumed to occupy in his own right; and rejected the evidence offered as conventional.

WILLIAM S. WOOD recalled.-Has known the Indian eighteen months; was twenty-eight years old as he said; was a short able-bodied Indian; have hunted with him.

Counsel.-Did you ever hear this Indian threaten to kill Foster?

Counsel for prosecution.-Objected to, on the ground of irrelevancy.

Counsel for defense.-We urged the evidence, because it is competent, and goes to establish the fact of "imminent danger," to the life of Foster; and whether it sufficiently establishes that fact is for the jury to determine.

Judge Denio said the testimony was inadmissible, and judge Dygert was of his opinion; but when the whole Bench was appealed to, behold; the other three judges were for admitting it; and for the first time and probably the last time in his official station, his Honor found himself overruled by the Common Pleas judges.

Witness.-Has heard Indian at different times threaten to kill Foster, "He said Foster was caulking his boat (this was in July) and he had a mind to go up and tomahawk Foster and throw him into the river; but his squaw took hold of his coat and persuaded him to go to his shantee;" he said he had a notion to go back; "If I can not do it now," said he, "the first time I catch him alone I'll be the death of him." This was a year ago last July; Foster came to witness's house the morning of Sept. 17, to see how long before witness would be ready to start up the lakes; witness lives on south side of outlet and Foster on the north side; a mile from witness's to Foster's; one and three-fourths miles from Witness's house to the forge; Foster came to the door, (Chase and witness were eating breakfast). "How long before you will be ready to go?" asked Foster. "In an hour or perhaps less," we answered. Foster turned round to go out; Indian was standing at the fire place and said, "What you call me d-m rascal, d-m Indian, so much for?" "Because I am a mind to," he answered; the Indian sprung upon Foster, took him by the neck and drew his knife upon him, which Foster knocked out of his hand upon the floor; Indian said, "You old devil, I got you now, I kill you:" witness then sprang and grabbed the Indian, and Chase secured Foster's rifle; then witness relieved Foster, who stepped to the door, saying, "Where's my rifle." Indian said, "Where's my tomahawk? d-m old cuss!" Witness said, "You want no tomahawk; be peaceable;" said Indian after Foster went out, "now Foster wont live to see another Christmas! I'll kill him, d-m old cuss!" It was an Indian hunting knife which he carried by his side, in a sheath in his belt; knife looked as if it had been a case-knife, ground off to a peak and pointed; Foster was cut across his wrist and face in the flesh; Indian belonged to the St. Regis tribe, a Canada Indian; British Indian stout and athletic; After Foster went out Indian said, "I should have killed him then if it had not been for Chase and witness;" three-fourths of an hour after this, Indian was killed; witness was with Indian about six weeks, and left him.

Cross-examined.- Did not tell Foster the last threat at witness's house; about a quarter of an hour after this they started; were about half an hour in walking up to forge; Waters went with witness and Chase; were not long at forge; found others at forge; about twenty or thirty minutes at forge; can't say precisely; took perhaps twenty or thirty minutes to 90 to point; never told Foster of any of the threats; witness and Chase and Indian were going trapping together; Chase was not in first partnership of witness and Indian.

Counsel for defence.- Object to evidence of defendant's confessions, as opening the case anew after the prosecution had rested; overruled; witness went to Foster's house, and Foster went back with them (to the lake to get the body); did not hear Foster say anything.

JUDAH C. MARSH SWORN.-Was at Foster's between the 15th and 20th of August, a year ago; Foster asked Indian for seventeen shillings, pay for sundry articles; Indian offered to pay a part but not all, Foster said, "I've let you have articles to keep you from starving; Indian meal and potatoes which I have carried on my back seventeen miles;" Indian offered to pay a part; "why not pay the whole? I've dealt with you like a brother; I've heard you threatened to take my life; you came once where I was fixing a boat (I've been informed) on purpose to kill me; you came once to my house with your rifle loaded and called me to the door to kill me;" "yes;" "why do you want to hurt me? I never wanted to hurt you; I would as soon kill a white man as an Indian; I would not kill you for a million of worlds;" Indian asked how soon he would come to the Seventh lake; said "You must never come there; if you do you never come back again alive; we're now on Brown's tract and out of the way of all law; if you kill me you kill me; if I kill you I kill you;" Foster said, "I agree to no such thing; am afraid of your sly Indian way of fighting; I have heard that you threatened to kill several at Lake Pleasant; and a man by the name of Lyon; I shall complain of you and have you taken care of; I am afraid of my life,-" Indian said, "Complain and be d-d, me meet you"; Indian threatened to kill David Foster (son of defendant) if he came to the Racket lake; Indian started to the door, took up his tomahawk; prisoner stepped into the house, and Indian let his tomahawk drop after prisoner was out of sight.

Cross-examined.-Is a son-in-law of defendant; resides at Auburn; went there last July; don't recollect the amount of flour, &c., that Foster called over; when items were mentioned once he said it was cheap enough; Indian spoke tolerably good English; some broken; witness staid but eight or ten days on tract after this; David left after October; witness advised defendant to come away; he said he should come as soon as he possibly could; for he considered his life in danger every moment; Seventh lake is some fifteen miles from Foster's; Indian had a squaw and two children: squaw went back to St. Regis; defendant and wife, son and son's wife, witness and his wife- and Johnson were in the house, and three children, two of David's and one of witness's.

Direct testimony resumed.-Foster said, "as soon as I can get the old lady away, I shall go;" she was rather feeble; she was not able to go with witness; wanted to wait till sleighing; David's wife was unwell; a numb palsy affection.

ABNER BLACKMAN, SWORN.-Knew the Indian named and Foster; Foster was narrating a story about Indian's coming to his house; he said the "Indian had loaded his rifle and come to his door to shoot him; Indian said it was well for him that he was not at home, as he came to shoot him; he would have put a bullet through him; he (Foster) would have seen his God in two minutes;" witness told him that the Indian had told him the same thing, as to his coming to his house to shoot him; has heard the Indian threaten the life of Foster.

Cross-examined.-Had a conversation with Foster; he said the Indian had threatened to kill him a good many times; and in different ways; he had spoke of not being afraid of Indian, but he was really afraid, and looked behind every old log and bush expecting the Indian ready to kill him; he trembled as he walked; said he would have been glad to have got away, if he could conveniently; but his property and family were there; his son's wife unwell, and could not be moved then; he said like this, "he had a gun that had always told him the truth, and he had pushed a bull off the bridge;" he said they came down to his house for him to go up; he went, and found Waters in the canoe; no one dared to take hold of him; he took hold of him and pulled him up; did not tell him how the Indian got killed, nor that he killed him; was talking about hunting and killing deer when he said he pushed the bull off the bridge; and, perhaps, about the Indian also; were not talking about the Indian when he said his gun always told the truth; has seen Indian at witness s house; heard Indian say he belonged to St. Regis tribe; witness lives in Greig, Lewis county; conversation in that town on witness's way to and from Herreshoff's; Greig is nineteen or twenty miles from Herreshoff's place.

JOSHUA HARRIS, SWORN.-Lives in Greig, Lewis county; was a magistrate in September last. The defence offered to prove by this witness that Foster applied to him to get a warrant, and complained that he was in fear of losing his life; that the Indian had threatened to kill him repeatedly; had intimated several times that Indian had threatened to kill him.

Witness.- Has conversed with Indian; has heard him say repeatedly, he would kill Foster, "if Foster goes up to Fourth, Fifth, Sixth or Seventh lake again, he will never return alive if I can catch him there; the Indian roused up, "Foster, how many deer you kill?" "Don't know." "D-m him, I'll pile him up with my deer by-and-by, at another time in harvest, he said, "I'll serve Foster, d-d old cuss, as I have a number of the d-d Yankees, I will take his life, or butcher him;" the threats were often repeated; he would rave against Foster.

Cross-examined.-Indian was there a year ago last October, and often, until killed, shantied (lived in a shantee or hut) on witness's farm, forty rods from house, about two months; was about twenty-eight years of age; has conversed with Foster since the death; he intimated as much as though he had killed the Indian; said "he was not guilty of shedding innocent blood; what he had done was done in his own defence;" he was talking about his being taken for killing the Indian, and his trial.

ASA BROWN, SWORN.-Knows Foster; knew Indian; has heard the Indian threaten the life of Foster; Indian came to witness's house in Greig, Lewis county, in the fore part of August, a year ago; between the first and twentieth; he said he did not want to say much about old Foster; he d-d old cuss; Mrs. Foster good old woman; he went on and stated how well she had used him, and squaw, and little papooses; then he said, after the favors, "old Foster, d-m old cuss, want to make me pay for it;" he said he should not; he meant to kill old Foster; "me get good rifle; me shoot straight; me put ball right through the heart." I said, "Peter, you must not talk such language as that, for you are liable to be had up and confined ... .. Me care not a d-d for that; no law on Brown's tract." Said I, if there is no law on the tract, there is here, and will put you where the dogs wont bite you. "Me no care for dat; me kill d-m old cuss." Witness advised him to peace with Foster. "Mrs. Foster use me well; good woman; Foster d-m old cuss; put ball through his heart." Never saw him alive after that.

Cross-examined.- Saw Foster about two weeks after this, and told him what the Indian said; Foster replied, "If the Indian would come in sight, and shoot quicker than he did, then he (Foster) would be killed; if not, not; he had a rifle that never told a lie; and said he had heard a great many such threats from the Indian, and felt in danger of losing his life when traversing the forest for his traps; he said his eyes were continually on the watch, for fear the Indian was skulking about to shoot him;" has seen Foster but once since the Indian's death; heard no confession of killing.

WILLARD JOHNSON, SWORN.-Knew Foster and Indian; resided on Brown's tract; has heard Indian threaten Foster to kill him-the first difficulty was about a boat; Foster said, "you should not do so; if you want a boat, ask for it." Indian said, d-m old Foster, I'll put the ball there," pointing his finger in center of his forehead. The next, Foster had let him have things, and Peter refused to pay; about two or three months after, can't say exactly, Foster said, "this is the usage I get, I backed in these things and paid my money for them." Waters flourished his hatchet; Foster went in quick, and if he had not, he would have struck the hatchet between Foster's shoulders. Again, the morning before Waters was shot, witness was at his own place, a mile from Foster's, when he saw Waters; talked with him; said "go along with me and make peace with Foster;- "old Foster I will kill, if I can get him out to shoot him. I'll butcher him in his bed; I know which side of the bed he lays; and if you hear anything there, don't you come nigh, you may get hurt; old woman is good; I wont hurt her; but you must not come nigh me." (The Indian requested Johnson to tell Mrs. Foster to keep her own side in the bed.)

Cross-examined.-Thinks he told it to Foster the night before the killing; every time witness saw Waters, he would enquire when he was going home; and witness did not know what to make of it; an Indian is an Indian; Foster went to swear the peace; Indian was a crabbed sort of a fellow; had no conversation with Foster since Indian was killed.

The counsel for the prisoner offered to prove threats of the Indian to kill Foster, by several other persons, but was overruled, and the defence rested.

For the prosecution.

WILLISTON TYLER, SWORN.-Was at Foster's the evening before killing; he said the Indian had threatened his life; but he was not afraid of the d-d black blood, unless it were by secret revenge; he said if he could catch him out any where, he would put him where the dogs would not bite him; they were talking about his complaining against Indian; he said it would be of no use: he would go into the woods before they could take him; but if he should catch him out, he would put him where the dogs wouldn't bite him; in going back up to the point where killed, witness asked the question whether he was standing or sitting the moment he was shot; Foster replied, "Sitting down; why I say he was sitting down is that they always did sit down, and never stand up in a bark canoe;- Foster went to the place where Indian was killed; they covered up Indian; went back next morning and re-covered it (the grave); might have been four hours from time witness saw Foster last to killing.

Cross-examined-Wood told Foster, "I've bad news to tell you; Peter's dead," Foster asked, "Did he die in a fit?" Wood informed Foster that he was shot and at what place, in answer to his inquiry; presumes they generally sit in a bark canoe.

DAVID CHASE, SWORN.-Don't remember every item of the scuffle; they were fixing to go away that morning; Foster came in his house; said "Good morning;" witness was busy packing up things to go away; Foster was eight feet from a small fire place; witness about ten feet away, packing; Indian spoke, but don't know what he said; Foster answered, but don't remember what; Indian pitched upon him and grabbed Foster; witness rose up and took Foster's rifle and set it up side of the house, about twelve feet from where they clenched; got back and Indian had thrown Foster; witness got his right hand, and Wood his left hand, and told Indian to let loose; Indian rose up; one called for his tomahawk and the other for his rifle; Foster went out, and witness went into the house, got his hat and rifle, and gave them to him; after this Foster said, "How long before you will be along?" As witness turned to go back, he saw blood on his own hand; this was pretty early in the morning; it was near noon when the shooting happened; between three and four hours, Indian, Wood and witness were going trapping.

Cross-examined.- Did not see a knife; as they took them apart, Indian was talking fast; and when he came back he was cooled down; Wood got to Indian and Foster first; had no conversation with Foster since.

NELSON STIMPSON, SWORN.-Saw the Indian clench Foster, Foster went into the house and spoke to Chase and Wood; asked them what time they would be up the lake; Indian "How many times more will you call me d-d liar?" Foster, "Do you want to pick a quarrel with me this morning, you _______ ?" The Indian sprang and clenched him, and jammed the door too, and witness saw no more of it; saw Foster as he came out; he told witness to go down to the forge; four hours from time of scuffle to killing; had some conversation with Foster coming from tract next day.

FRANCIS S. SPINNER, SWORN.-There was some conversation when Foster came down from Martinsburg; he said something; don't think he said he killed him; witness advised him to say nothing; he said there would probably be no dispute about the facts; there would be proof enough; thinks he said the Indian suspected something, and put up his hands; he said he examined the body, and in examination found he was shot with two balls; he said his rifle never told a lie; don't know whether this latter observation was in that conversation; he said they were afraid to take care of the body, and he went up; found it was a center shot; a hole under one arm, close up, and two on the opposite side; is not clear, but he may have said that his arm must have been thrown up, or the ball could not have entered there.

The testimony having closed Mr. HURLBUT opened the defence to the jury, and his associates, SPENCER and HACKLEY, summed up. The cause is said, by spectators, to have been very ably conducted on both sides.

Judge DENIO, who was from another county, a stranger to the parties and unbiased by the prejudices which made either for or against the prisoner, determined to try him fairly and impartially. There can be no greater virtue in any tribunal, than that of impartiality in the administration of justice. Indeed, when other motives influence judicial decisions than those of equity, and power is warped to favor, rapine and anarchy stalk the earth unbridled, honesty wears weeds, and disinterested benevolence folds her self up in a garment of sackcloth.

The following is a brief memorandum made by Mr. Hurlbut, of judge Denio's charge to the jury.

"The court advise the jury, that the law applies to the region of country where the offense was committed. The law pervades every section of the country. There is no place where crime is not cognizable.

"In regard to the race of men to which the deceased belonged, when the question is, what will authorize the taking of the life of such an one? we answer, no one can take such life without such reasons as would authorize the taking of the life of any other human being.

"There are two cases of killing which is not murder. First, when there is killing in a sudden affray: it is manslaughter. If, at the time of the rencontre in the morning, before his passion cooled, the prisoner had shot the Indian, it would have been manslaughter only. But if his passion cooled, and contrivance or malice was aroused, it would have been murder. Second, a man has a right to kill another in self defence. The court would not abridge that privilege. If Wood's account be true, if the Indian came with his knife drawn and offered a fatal blow, and Foster had not time to retreat, he would have been authorized to shoot him dead. That would have been a legitimate case of self defence. The law of this country is not, when a man is out of immediate danger, but has a secret enemy, that he has a right to kill him. This would not be a good code of laws if that were so. In a state of nature, it would have been morally right to have taken the Indian's life in this case. The principle of self defence applies only to the case of present attack upon the accused. If Foster seriously believed he was right and justified, it makes no difference in law, morally it does.

"These views you have a right to overlook. You are not bound to pay any further regard to this opinion, than the superior means of the court of possessing information may entitle it to."

The jury retired.

Before the trial commenced, Mr. Hurlbut received from Foster the most urgent instructions to convict him of murder or acquit him altogether. He protested against being found guilty of manslaughter, as he dreaded imprisonment, even for the shortest term, worse than death.

The jury, after a deliberation of two hours, returned into court with a verdict of acquittal, As they entered and took their seats, the "cloud of witnesses" became hushed; the moment was one of intense interest; and to so great a tension had the feelings of the old gentleman been drawn by the excitement his precarious fate had invoked, that his spirit seemed hovering between life and death. Says Mr. Hurlbut, "When the jury came in with their verdict, he was insensible; and it was with some difficulty he was roused to consciousness, so as to understand the verdict. When the words not guilty, after being two or three times repeated to him by his counsel, struck his senses fairly, he rose up, stretched out both hands wide over the heads of the spectators, and exclaiming, 'God bless you all! God bless the people! rushed out of the court room, and rode home his well known hunter's pony."

A murmur of applause ran through the crowd, the sympathies of which were nearly all enlisted in his favor, as the old trapper left the court room for the street, to which he was followed by scores of people of all ages, anxious to offer their congratulations. At Little Falls, great was the rejoicing and clapping of hands, when the news reached that place that Foster was free; indeed the enlargement met with one universal burst of approbation throughout the county. Not because he had killed a poor Indian, and been acquitted; but because he was not to be hung for having killed a man in his own defense, as they viewed it. There can remain little doubt, when it is known as a characteristic of the red man that he never forgives a known or imagined injury, and seldom a grudge, especially one he has determined to punish with death, but that he would have killed Foster "before Christmas," if Foster had not slain him (20). But we leave this case to Him who set His own mark on the first murderer, Cain; and to whose mercy Moses was subjected, when he slew and concealed his man in the sands of Egypt.