New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1853-10-31
Nem1lork Daily Gribnne.
TgF RP01DIV1y PIYLY.IY CIsE.
onrpr-nrclsInS oF IrnaE pusR


that sheld give bces history OF the pr'ei ms.
which have taken place before besase these pscesi.
nes 4 they have not been n.srepreseased have been
misurderstood The ease was broagLt TO q hersas on
ell the issues made by the pesiiags the May term last
More ihsn eighty Witnesses cxamned sni the ex
amnSus Of the witnesses aud tho Arguments Of eoan.
sci occUped full weeks Of the aud ptr Of the
third might with pEofrety have suspended the srgu-
merit 81 The end Ut the second week. because that
clos he regular Term Court bat consented e. st
there during The ensuing week by the eonsea, % all
the tsfties he testimony had been taken down by
seuogrsplc writer and { Sss agreed ON both sds they
should lie governed exclusively oy hi' n'teS In the
scoud race took no sell AMI was cons ltcny
uurr,psrtd 10 examine the evidence al al -ad 1T coass
10 decide ucn cue sons Of fact whoh woai have de-
s;sS ~ a. sernntil suppied with fail aud complete
cory Of the eN idence ffum the notes ~ ne sen Hcr.
was quite evident tina, fair copy Of hi. eSdaIc, was
irst psshle 60 but il also Impossible L, iirnso
,hs f,for, tho cxriraon OF twony days. wthia which
time il would be uect ssery 10 give my detNh an N-S
that Il would DO impossible for ne to nc 'he 'as ~ta
sphc;crf care therefore stated % tina cOaasl thGn
vud hs npractcahlc and that wo0l b. Necessary %
esttrd tie time had been convinced hosevcs. thai
whsie,er decision mi ht bem'e an aeai woad ~ tsSen
% he n,ra Term Bat then could DC appeal 20 thu
General Term until October. the eioFe pr"pSsei thst
the time for rend ring my decision should be postponed
until August or September a; tarthest The e"aael tor
the plsipT scce!ed this request bat for 40 % reasns
hest known tmssyes, and 40 doubt atSitoy put
vh,h have been able O. underst ami t0e dcehi
ants refu, ed to acccde 10 my llat IL hi2Nn,l a.
expected. The rotts were u furnished, as hSht ave
been anc,, aiod until two three days before ne ehPra
ton OF the hm,d term II twenty days, sni whit Which
Was reoued Ia decide the question. The tstim that
was takn by enogaphrT am 'an 10 nearly W. "a
sand foi 81 am certain theinte Sgroghet .ohi n'Ne
large octave volume ard all this mass ~ evidence was
oil we'd bur three days read over IL wss aPhy-
cal mp, ssity tot evsn % rCad over the testimony IN
time to give my decision Under these creun ances vas
r,Oua q ave my decision. Having tho t,sno-
nv arrived conclusion the question Ut nussnces
with some officially whethc the plant a. bal utAned
sp,cal injury tho witnesses possessing equal skill re-
su csh, ana experience swnre IN the m st positive
nsfrer on opposite Opnious lh3n the n uiy occurred
wheh,r the action could be maintained tho nano Of
nj nj all ID
was not necessary pa ty 60 the SUIT THIS Digestion vas
first stated the argument OF the motion Tor an atash-
ueut The only answer then given 10 It was that tho
comllant did eee that this public nuisance fOnf
which the plaintiffs, being owners oi property on Broad
way would sustain special injury Judge boswouh Init
mated very clearly that THAI was the only groani GA
| Which the su could be maintain d. Such was my own
imme sion a that time though the question scarcely,
Ii at all discussed before me. was un"dihg also -
yield to my own conviction that thu Attorney General
was necessary party until had given the counsel Tor
plaintiff opportunity for arguing that question very
July Instead of giving final jads IN this case
dnccted a luither argument the following questions
Have the plaintiffs a right To maintain the a'"n Il tho
evidence i suici, 90 prove hat the Broadway iroal
would be a public nuisance, from which tho owners OF
property have sustained special I4jury In such caso
nut the plsnti be dismissed in order tha the Attorney
General NAV be made prosecuting oic,r an ir,tani
that my ii. ht 70 mako order Ia this mat cf ha been
disruted and therefore shall explain in few words.
H.. grounds on which have n ght 10 m IKE this order.
m. truvs,n Of the Codesec. s67-declaus that upDs
trial question of fact this decision shat b. mae 40 sut
ing within twenty days afer the asonrrm nt OF the Curt
hs.n Saubt.S and Ihave always cou.idcre6t dabtfa
question whether this section Of the Code was Intended To
refer any other class of cases except Ia Tho Which, IN
their nature ought 10 be refored Ia Jary, blt
larser construction hes been given & IT. IL 4, hatcon
s,u, ton which an willing 60 follow. ithas always
been doubted whether this section should b. cDnsd red
m,Ity a. dircciosl or involving posit' duly. Tue
counsel for the defendant have always n.sed upon this,
namely that th mpo'os by It's terms positive duty up,n
Il Judge aud ba his failure 20 comply vi his eooii-
tion nders void any judgment pronounced By IN tho
exIhsiion q the TINS 10 which he was ilntei thus,
oIlng the construction, s said that "hofsa' have
not decided upon this case within tho t"eaty days,
have lost all jurisdiction In the case Aih)ugh
en- willing 10 give tie construction that have stated
To this provision of the Code. tho consequence that
Lac right direct the roargumeut upon any Of tho
o., -ionf ncndcdin the by moan ioliws hs tho
duty ell The hi q judge To direct new argument
b, Ore bis final decisif pronounced la all scs vhe
bt evdf deemed by the court to b. oOictDg, tho
court will probably cal juy. Iheso cases arc nanor-
0ur a. Wild this his been pursued Asr tho cae
had been beard by him. IL "a doaDuuI ~ MS own innd
Tie should be- referred ton jury have no doubt
ta he cour has a right 10 make order viii b Involves
a,otl question la "a argncd before audyc Pan9
nDtelL IN which Mr. Field appeared for deienIlnt,
ard Which wa again brought on by gum'n before ma
in tL Special Tenn, understood the l'nuh 10 say That
q c,uIse did not coll IN qufs ion M n n t. mtko an
or,tr and did not raise any bj.ctDu T. tAe Ic c0n
Of Le court shall n0w proceed 10 st 40 shs colcisbas
al vhch have 0uived, after very riseiul eka.nna.
ton - tho authorities bearing op,I shs ic.'ioh ani
tn upon which theso author - are fouaisf
y first difficulty "as Nheib'r tho Attorney Ueasral Ia
q l. Sufo p,sscsts powers which, b. The con nOI law
are voted in iht Attorney General ia Eafaad. Il vas
stprofed hat although may be- construed that tbs Al
t,lley General in England ssary pay suit VI
this Kind that whom individual by whpD tho salt is
hiott b unable prove that m have sustained any
~ oial injury Il b. rule 0l law that tho
AfOrnCJ General deemed b. b. pH J, anI cDnAl
,td II o be Scfy doubtful wheiho be, ia h. case pDs.
ftssts Gpy oh IO8eg Than that which c01gTe upon
by he Revised Statutes. SHOULD b. ysry unsdling
deed TO sert p,syt, that tn At,ray 8snefli does
I,-ses this Iower which by the Of he cDnnJ1
Inv bO0np 10 the An0n,y-Gene al IN In lanl. Bhtb
tiLtt6ss8Iy 10 dcio mine upon tDar pint. Tbs PEG.
IL Of th State sovereign pow anl their interests
involved 10 oil eases whore tbai power Toned.
The Ieo IL II Ills State have, therefore Interest In AL
nlsT 10 he present. II Il sh,ol appear apon
animation that these authorities showed j., nnyaryaz
al uIbroksD Il ain Of dsCi,pns n the Elzh courts "
j. certain that the Attorney GenerB! IS nseessay plrty
lets Ii j. hid however tLat this etyD canB now bo
tai Section 10 Ofthe Code max l5cfi 6psY
Ilsn' evidence, ground Of demurrer and certainly
i had only The right u pass ulo hs OlJsciiep, tha
grouId ha has lot been taken up b. the ptties has
IL, Gefnfely viewed Ny exam sJn 81 shis 80 IA.
Ihry without 9hofe presence this controversy ca0nDt be
dtfcIniLtd Without going into ycry fall 90 lni1a-
tioI Of cases although cannot bg, INIT That the Ircs
- tie rule il akened by lie hiOn .! the \ ipgemB
Court lie general rule ~ that where ths act Il spaf
corporation il subject of complaif against which
rel et IL sought Nuisance " fBs public AZ
large, tie Attorney q neral il no ,s,strJ par.
b.. NgriO1s grounds stated In th-, in which 4 IL
c'tefd.d hst The Corporation ant their grantees ought
20 b, resfTaHod ir 10 building rail Dad Ia Drpa1yaz
hoD with the u. gle exception that the rsr,ai u a.
eunfd 10 be public nuance, the other grolnls nay ss
20 ccLiIed 1Ley q her imply x ssiye ~ yer aaf
Sulorify he pan Of the c0rpo lon Or brsseb "
tut aid IN this maftsr tie ax uayer. ~ thu - ara
,qoay Lisrsi'd with tie ndiydI1ls brHgiD. b. suit,
EsOy ayr hss the rgh q restfsis the ca.
ioInoD ~ Of ppwer. Il the 81 he tor
reg GeneIe ~ arst Poole, (secgnd king 100 a d.n1r.
~ va ali wec nd the Ausnsy fieasrrf gaist Whom