Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1840-07-15

General Sessions.


held, were put to the bar charged with riot, assault
and battery, &c. In Green street. on the Sd of May
last.
1t appeared that the defendants, with another per.
son not in custody, went out the 81 Of May last
to have duel after the good old English fashion of /,
fa'r and stand up fight, with the weapoa God and
nature has provided. That the ground chosen was
vacant lot in Green street, and that first round
was so furiousy fought "that it was impossible to
tell whether the principals were white black -
An attempt was made by the officers OF justice to
separate the parties, but, before this could be eff ct
ed, a mob of hundred people ass embed, and hence
the charge Of riot.
Mr.. Shaler appeared for the defence, and set up
mat Canfeld was lame of an arm, ard incapable Of
hghtlng. The jury acquitted Garfield and con-
victed the principals. Lawler, the other second,
who did not appear had his recognzances forfeited
In the matter of Nathaniel Badd, indicted for
perjury, two opinions were delivered by the Court
as follOws:-
JUDGE SANDroRps OPSroy-Thc defendant in this case
mas been ndicedior the offence Of perjury election
ana he pleads IN abatement of that Indictment that the
court before whom is pending is legally organized
and constituted that two of the persons sitting
members OF the court not judges thereof and that
this defect in the constitution of the court present tr
bunal have no cognizance Of the offence with which he
stands charged The District Attorney has demurred to
this Plea and the question presented for consde
ration is whether such plea be entertained, or in
other words, whether it competent for three judges
inquire into and determine the rights of the gentle
men now occupying the bench of this court with them
This plea presents challenge to the judges. If the
right OF any one member of this court be questioned
by plea to its jurisdiction, the right of all NAV il the cha
lenge be admissible as to it is admissible all 1t
would present nove and singular spectacle 10 wit
of justice entertaining era We argument upon
their own right to the seats they occupy and then decd
ing that question for themselves And il would he sill
extraordinary should the District Attorney have re.
piled TO the plea and then called upon the Judges sitting
here to submit the issue thus framed involving the ques-
ton of their title to the bench to jury Yet this is the
principle presented by the plea this the only
difference in extent is that the plea questions the right
two Judges instead OF the whole bench These consdera
tions fixed themselves upon my mind during the argument
with weight of conviction that rendered unnecessary
i'll my judgment, to examine the question whether the
facts stated in the plea do not show that the gentlemen de-
signeted sitting here without legal authority.
Coke says in his Commentary upon Lttleton that "the
four knights electors OF the Grand Asze not to be
challenged for that in law they be judges that purpose
and judges or justices cannot be challenged"
There does not appear to have been such question
raised that presented to this court in the annals
Jurisprudence The learned counsel for the defendant
searched for authorities it'll great diligence and he is un.
able to present to any precedent for such plea. He
brings in collateral cases. which he supposes to be in aid
of the principle for which he contends but offers no
in point. have examined the subec with care, and can
find no principle or authority to uphold this plea.
Suppose of clear usurpation whether there
neither could be ega court, and yet power to
have exerted ITSELF and assumed to entertain pleas de-
eide upon the rights of property and liberties Of citizens
Would think OF presenting the question ofusurp
alton the usurper for decision Yet this the prnci
pie upon which the plea under consideration rests
In the case of Chambers vs. Jennings, Jaheas Rep 553
suit by libel was in the court of honor and application
made to the Court of Queens Bench for prohibition.
Holt, c. j. doubted whether there was could be any
such court but said prohibition would lie TO pretended
court and the prohibition went absolutely -Prohibiton
is the remedy for useful authority and the judges
named i'm the plca exercising such authority subject
prohibition from the Supreme Court Their right must
be examined in that tribunal, and not in this.
The learned counsel for the defendant bases his argu
ment upon the ground this court created by statute
and is OF limited and special ursd ton and that if does
not pursue the statute in its organization its proceedings
udise and void. do not assent to the pro-
position that this is court Of limited and special urisdc
ton. This court is Of general jurisdiction in criminal
cases, with single execution, and bears precise analogy
to the Courts of Common Pleas within this State 1t is
lavely Inferior TO the supreme Court, because is in
measure under the control of that court, and APP
peal lies from decision to that tribunal But it is
therefore an inferior court.
There doubt that court must be properly organ
zed but the question raised by this plea is, whether the
is To determine the legality of its organization
The decision oil such question could not be matter OF
doubt because We have virtually determined by taking
here and assuming the dispensation of public
justice am clearly of opinion that this plea bad and
that judgment should be given for The people upon the de-
murrcr-with liberty to the defendant to plead over.
Jidge Lynch dissenting from his associate colleague on
the bench, read the following opinion
JrDGE LYNcu's OPINION.
This is an indictment for perjury The defendant being
and aiIres ir cans ,ba, ~ conrt "a not or arsoJ %
cording to law inasmuch Aldermen Purdy and Jarvis
who not authorised by law to act judges Of this
court, are actually sitting as members thereof
To this annexed by way of demurrer the part of
the prosecution that the authority of the Aldermen
as Judges, cannot be questioned by this court.
think IL is proposition clear admit of doubt
If should appear the court any time either upon the
stances, that their proceedings wouldbc dice,
IL their duty to arrest them, and remove the objection IL
practicable AS for instance II one OF the Judges who
was present. and necessary to make quorum had been
Dperseded Mass. Rep 3e6.
50 persons not entitled do sit and unite in the delbe-
raons of the court to contIol the decision Of the
legal member
So IL appears the trial that the has urs-
dction. Gaines, los
This was an action justice; the trial appear
ed that the justice tavernkccpcr and the defendant
demurrcd the evidence, and judgment rendered for
plaintiff The Supreme Court decided that the proceed
ngs judice and that the justice liable
in action OF trespass.
Il max no difference whether the presented BY
plea aud evidence trial. by proof afterwards The
proceedings all coram non JUDGE and void John,
400
This must be so from the necessity Of the case; other
wise the Judges who exercise authority courts Of m
ted jurisdiction. if they proceed to judgment and
ton would be liable trespassers and in be
liable Indictment 10 Coke Rep 5G Hale pleas Of theft
81: Dalton Car. o.; Wndcll, 300; 9 Wndcll, 26j.
In deciding the matter before the court. It is not
cessary enquire whether the Aldermen legal judges
or mott for admitted by the demurrer that they not
by law Judges Of this court and the question is whether
defendant can take adv antage of that exception.
The decision ofh point involves the question whether
persons not authorised by law should in
trudc upon this bench, The court have the power and
right exclude them from taking part members of the
court upon on objection being made by defendant 10
their right to sit judges There are Circumstances Of.
tending the position of the Aldermen claiming seats here,
which have operated my mind TO prevent resort TO the
ordinary power Of this court to protect itself against inter
rupion. have for moment doubted the right of
the legal members o this court to prevent the intrusion of
persons authorised by law and not being clothed even
with the color of office.
THE District Attorney has referred to Cokos Institutes
20 show that Judges liable to challenge which he
considers as governing this In of the authori
ties 10 which he refers stated that the Justices at Mn
will not be contcndcd that IL suggestion was made to
the Judge Ut Ns Prus that he had direct interest in
cause pending that he related to the parties, he
would take cognyancc Of tho cause,
In aJiiticu 10 this the Judge N Plus merely
10 rv sues there is ground of exception again against
his Jurisdiction, must be argued in banco. -. -,