The New York herald., 1845-06-18


The Attorney General, JoHs vAS Bunrx, Esq., COM
ciate (slr. Cuttng) had argued this case 50 fully so
clearly and with much ability, that there little
therefore, he should conne himself very points
Atthe same time hc wished the court to notice that If he
reianea M from urging or pressing any ohe points made
consume the time of the court by the repetition and for
other causes for he maintained and endorsed all the
points made and urged by his associate and he did not
intend to yield the smallest iota thereof He would,
therefore, begin his argument at the end Of the
seemed to have been greatly overlooked and neglected
and that was "the People Of the State Of New York"
uhs Is not an action brought BY Mr. Conner against Mr.
call on the part Of the people the defendant who
usurs the Office Of Clerk ofthe Court Of Common Pleas
We call him to show his warrant. The presumption
set up that he is in under colorado title is not appca
sumptions in favor of the people It is not action
between two persons but Information by the people,
(5ee 4th Burrows 2l4S, of the King VS.. Leigh and
5 Johnson $685. case Of the People the Utica Insur
ancc Company Here it is distinctly laid down that it
is the duty Of the party against whom the information is
laid, to show his clear title. $50 also in the Of
Thompson Taylor, "a Wendell) Here, 30 strictly
this held that it laid down that matter what
might be the result Of all other issues where there are
several any issue is found in favor Of the people,
then Judgment Of custer must follow. The question
arises then have they any greater power under
formation, than they had at Common Law They have
not and II they assume it, i should not be allowed
OF the Attorney General and defendant has right by
statute to traverse it, (2nd Rev. Stat 552, Sec. 80, &c.
regulate the proceedings on nformations. 3rd Rev.
Stat ISS the revsers give for their addition
al provisions, that they bring about the result
before, but with greater fomality) Our information
sets out that Andrew Warner (p in error usurper
and we have general averment at the end that James
Conner is entitled to the Office. Defendant could
traverse the in the same plea that sets up the IL
tie OF the relator He cannot plead two pleas in these
proceedings (5ee the case People Jones,l Wendell
6Ol party plead four pleas, and the Attorney Gene
rlI md thaf tho all
plead double, not applying to such At common
law he can have authority to traverse this averment
only far as he necessarily raverses it by setting up
his own This plea Of Warmers terminates at the 18th
line Of the tenth page the Error Book and concludes
with verifcation the other portions down to line 49, is
the denial Of Conner clerk &C. this II it amounts to
any thing part Of plea Of the general ISSUE Here
would be double termination Gf allowed end ri
able before the Court Of Errors and the other rabe be-
fore jury The People plaintiffs in this proceeding,
and Warner defendant Suppose the judgment lot the
court below stands and farther proceedings had
der the statute to the fees received by Warner
could any part Of this be read in evidence in suit be-
Conner and Warner? 1t is an information by the
People against Warner and Warner has no earthly nte
rest in this suit except whether he is ousted not and
the act never contemplated turning the proceeding by
information into private suit But there is concln-
sve answer to the suggestion that the Judgment Of the
supreme Court in favor of Conner should be reversed
What should the plea be (See Chitty's Peadings vol
lpp79 Mr. Van Buren, also referred to cases. Cowan'
81, Denyck VS.. Waterbury, and Bowling Ryland 2lO
Bnggs VS., ;cox2 An entire plea must be good in the
count the plea is to the whole information and the
plea demurred to- The Judgment of the Court form
is Of custer against Warner and in favor of Con-
ner but in fact the judgment of the Court is
ruling OF the plea Suppose they could traverse sim
al OF Conners right is material them standing alone it
would be sufficient plea. This will not be pretended.
The plea must show title in the incumbent The plea is
bad for duplcity, and should be over.ruled on that
ground The demurrer admits nothing but says that
your plea is not good defence to the information We
demur to the plea, because it is bad. The Court
rules it because is bad and doing pronounce the
Judgment the information calls for The information
stands undcfcnded and the Court could pronounce
other judgment q Rev. Stat, $685. 50, to plea
and damages &c.) There may be question whether this
Judgment could be read in evidence in suit between
these parties on subsequent proceedings
Warner does not deny that Conner Clerk the City
and County of New York. except in such way that we
cannot take notice oft Look at our avcrment of Con-
ner's right Error Book, page g. line aa And the said
George r Barker &C." When defendant comes to ira.
that he couples all these together See
page 10 of Error Book And the said defendant further
says, that he denies, &c. &C." This is done in q way
that could not be allowed q plea. There is de-
Clerk Of the City and County of New York He WAR
ner groups together several allegations, and denies
them in lump. This is bad-it is not only duplicity
but picity the right of the Court to pass judg.
ment we say that they have the right, and bound
on this record to give Judgment Of custer and also judg
ment in favor of Copners right. Now to the power
of the Legislature to pass the Act of April l0th is4s
We say that this act alters the body polite We that
it was not passed by two.thrd vote. We say that it
should have been passed by twothrd They object
that do not plead the charter We that Conner
rightly entitled to the Office Of Clerk Of the city and
county Of New York There is issue taken on that.
We refer to the charter as proof The act was made
public and that made the charter public. tNlr Van Bu
rem here read the act How this court take cogni
zance Of that act and yet not take cognzanoe of all
those grants How you Iknow all those grants and
whers the cy IL pus
act the charter becomes public Is the charter before
the cour Wesay the court are bound to take judicial
loce of it. The statute says the charter shall be read
from book, Sc Does that make private Then the
Revised Statutes private for there is express act
which say the Rev Stat shall be read from book
But that does make them urivnte Rev.
1885, l2) But the law Of 1882 expressly makes the
charter public see Kents notes 97) The case cited
from Bingham 459 expressly decides that where
charter is referred to in public act 1t becomes public.
Now it argued that the court does not know that this
act of is43 Majority Bill But by the act of le42
relative to the mode of certifying two-third bills. it is
declared that law shall be presumed as majority bill
unless certified to have passed BY twohirds (see case
must go and the record if necessary to ascertain If
il passed by two-thirds and that you can't take sue
about the passage Of law, nui t record cannot be
pleaded in statute. And may take the Of The
People Purdy Hill ss4the law itself did not come
General demurred and the court decided that the law
Of 1910 was unconstitutional; although it not in
issue at all in the pleading say that this court must and
do look to see law was passed consttutionally and
il decided in the under the General Banking
Law (warner vs. Bcers)and they then determined that
People Purdy Hill 34 the Supreme Court looked at
the law to see il il passed by wohirds SO they did in
me very recent decision with regard to the constitg
they look and that this act of Is43 did not pass by
wothird VOTE then the point Does it alter the
corporation of the city Most certainly it does
10 tell one Of the Judges Of the Court OF Common
Pleas Sir, to day you may sit but tomorrow you
must take your hat and go out for going ap
point clerk of the court" This would to be
what OF an Infringement Of tho charter. And Judge
Bronson said varian's case, 25th Wende) that when
you make man judge Of court, he sit therein
for all the purposes for which any judge can sit Again.
the that tho Clerk Of the County shall not be
Clerk Of the Court Of Common Peashero is also vio-
lation OF the charter For the charter Of Gov Dongan
expressly says that he shall be Clerk OF the Court Of
Common Pleas. And the duties ofthat Office constituted
the main duties of that clerk They argue that that
Mayors Court has been annhated; that nothing Of the
original remains Why, this court has decided again
again. that that court the Common Pleas aud Ses-
sons. still remain So in the Of varisn, this
decided that the County Court still remains
In the Of Purdy the question was had he right
to sit under the charter against the law of s40 in the
Court of Sessions And II the Court Of Sessions has
been abolished the charter is Of But the origi
nal thing remains. II has been alluded to again and
again. You might well say that chartered right to
sit in the Park lost because there has been iron
railing put roundn or it has been poughcd
And ,tosxx kboth