The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-09-27


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Action Against the Police for Trespass-Aider-
man Herxack and the Mayor-ImPortsnt
Charge OF the Judge.
MARINE COURT.
Before Hon Judge Birdsall
SEPr. 26-Wiliam Roach u.s. Francis y. Toomy (folice
Captain) John McQuade, Henry L. Marsh, and William
Hinchnsan Police Oaors.-This an action tor tres
pass which occupied the Court for three days. is
against captain OF police and his assistants for forcby
entering the premises of the plaintiff during primary
election for delegates to Syracuse. Mr. Iawren having
summed up the part of the defence and Mr. Richard
Busted for the plaintiff the Judge proceeded to charge
the jury
your deliberations feel decacy, the questions
presented of Importance not only to the
in this action but to every member OF the police depart
The action is for trespass. will FIRST without auson
to the facts, define specifically to you what in law is
ment. Trespass, in its largest and most extensive
sense, Sir VIM. Backstone Signifies any trans
gesson or offence against the law of nature of society
in the country in which lve whether It relates
mans person his property But In the limited and
confined sense in which you consider it. it signifies
misses withouta lawful authority For
in lands, being established it follows necessary
consequence that this right must be exclusive-that
that he may retain to himself the sole and occupa
ton thereof and that he be entitled to the peacabls
quiet enjoyment Of possession and every entry thereon
without the owners leave and especially if contrary
his express order, is trespass transgresson One
must have however property (either absolute tenn
poray in the premises and actual possession by entry
to be able to maintain action of trespass Now, gen
temen, the question arises, has such act been
mtte by these deendansS Did they enter the premises
OF this plaintiff in violation of the rights which the law
has given him in the peaceabe and quiet possession
his own property? So then trespass has been com
med and the defendants have made themselves liable
What Is the defenceS That this being primary election
that these defendants had the right be there
tect such primary election that they acted in conformity
with their duty as officers of the law. They show
breach OF the peace to have been committed outside
this housethat is that threats made to down
the building unless hir play could be had that they
spectors which denied; that, in order to prevent
further breach of the outside they entered these
premises and that because the and windows were
barricaded, they had the right if admission
denied to them-tha then they such officers had the
right to enter by force. Now gentlemen to the fact
that this being primary election public meeting-hat
they had the right to enter protect-here is no pro-
vision in statutes the manner FORM time
place of holding elections Of this kind Primary elections
In republican form Of government is ofcourse unknown
to the English common law. They then in way
legalized unless by custom. This election held,
thereto. This assemblage had right to be there pur
suance to the call And If this plaintiff being the owner
or party in possession, had fit to let his premises
for this purpose he most certainly had the right say
in what and to what extent they should be used
he had given the inspectors right be in there for the
purpose receiving ballots through the window and
had appears prepared the window for that purpose
and he let the premises to be used they that
is giving to no other PERSONS excepting the in
to refuse the admission of these defendants to that
That breach of the peace committed outside of the
30 mot think won their acts ct in en-
preserved the peace outside. / therefore, charge
you, gentlemen, that, if in yeur opinion there
was breaking and entering by the defendants of
the premises the plaintiff in the absence of any breach
of the peace the inside of the house. in the absence of
any proper and duly executed Judicial process of law di
ma uarQ in Tho nh
of any request made to the defendants the plaintiff
by some person having right in the premises
under him. then these defendants, if they were
acting in concert, were guilty of trespass, pro-
vided in addition that you find the absence of these
legal reasons for breaking and entering and that such
entering against the expressed wish Of the party in
possession The ntendmen of the law with reference to
the attendance of policemen at primary elections
that settled principle to the enjoyment of property
should be violated All officers Of the law of whatever
character they may be, whether Judicial executive
must be regulated by and cannot violate these laws in
their execution. That parties violate law in execut
ing it is paradox which is unknown to it's principles
The question as to whether such violation has been eff
utey for You to pass upon This is to be determined BY
careful scrutiny Of the testimony before you,
and is not to be influenced by any knowledge
any juror may. possess outside Of the proof
pr by any extrinsic fact facts whatsoever.
have already stated that this is important matter
and 1t having appeared in public prints, that al
though parties the action yet that arises
put of personal feeling between who holds high,
honorable and executive position in city and one Of
nations have also been thrown out by the counsel in
their summing up. and also drawn out in some manner
from the witnesses and appear in proof before you that
the tickets voted that OCCASION and which caused tn
excitement styled, the s'Wood and the other
the s'Herrck ticket. would caution you in your deli
beraons, discard from your mind and all prejudice
bias which have been caused by such statements
ct them in no way influence or govern you The ques
ton ia not who shall rule the Nineteenth wards but has
tresrass, such has been defined by me, been
mted have the rights of this plaintiff been vioateds
The duties devoyng upon the Court in explaining to the
dered easy by Of the light which presidents and
fundamental writers have shed upon them The duty OF
the jury however is less easy OF performance and much
delicate. You to ask yourselves II the defend
ants who executive officers OF the law have brought
the powers with which they have been clothed to bear
either directly indirectly upon the legal expression of
popular wii-or at least upon the in which that
expression should be NEUTRALITY-SUSPICIOUS. the legal right
to do SOY If the Its complained OF we're illegal and had
the effect referred to, it is blow struck through the
plaintiff against the and well being Of society
and should be rebuked by your verdict On the other
hand, you will remember that the defendants hold i'm
portant positions in society and to them in great mea
is delegated coned the duty of protecting the
integrity of the public peace the property and
lives Of citizens and great should be exercised
by you that important branch Of the government
shall not be impaired in its usefulness brought into
contempt But distinctly charge you that if these de-
acts brought themselves within the prohibitions OF the
law interpreted to by the Court that then neither
voked to sustain them On the contrary, all sup
posed to know the laws and IL you find officials, whose
duty is to them executed openly and fearlessy
violating their provisions it should be taken into con-
sderation for the purpose of enhancing damages to the
end that Others holding like responsible positions may be
deferred from like violations The assumption Of doubt
full powers always dangerous and their exercise often
leads to oppression and wrong.
The defendants counsel asked the Judge to charge
several points. The Court replied in each instance that
he had already instructed the jury upon the points sub
ntted, and he repeated his views.
The jury after n short consultation brought in
ct for the plaintiff for $500. The counsel for defendants
demanded poll and being polled the jury all
swered in the armative-that the verdict read was
heir verdict
Supreme COurt-In Chambers.