New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1856-02-14
Nep;purk DAILY Iribune
THE DISPUTED JUDGESHIP.
SUPREME cOURT-GEsE.AL Tts~.

About IL o'clock on Wednesday morning, II. +.
Davies, esq. entered the Court room and presented
paper to Judge Peabody who had taken his usual
sea, the bench about five minutes previous Th
paper the latter did not examine but laid it on the
desk before him. Mr. Davies called upon one Of the
Controllers for q seat, which was handed to him.
TIE two gentlemen bowed to each other, but after
ward appeared obivious of each Others existence
Justices Roosevelt ard Cerke entered who took
their seats without recognizing Mr. Dawes The
Chief-Jusoe commenced calling the calendar and the
usual business of the Count proceeded
During the morning Mr.. Davies handed to the Clerk
copy Of the judgment of the Court OF Appeals and
directed it 10 be filed. An hour after the following
was entered on the minutes by order of the Court:
ydrsd That this Court does recognize persons
Judges at this General Term except Justices Roosevelt
ere and Peabody end that the Clerk and other oeer be
directed to govern themselves accordingly
In connection with the subject, We have the follow
ing letter. laid before the Court by Mr.. Davies
Hon. JANIS J. ROOSEVELT and Hon. THOMAS w.
CLEEKE-Genaemen: ] am in receipt of your note
dated Feb. f. 1885, in which you state that you have
considered the claims Of Mr. Peabody and mysei to
seat on tie bench Of the Supreme Court and that you
have decided in favor of the former and against the
validity Of my title.
You have proce ded to examine the tide of two per-
SONS whom Won are pleased to designate as "c0n-
hsfarts" to the office Of Justice of the Supreme
Count and without the suggestion of any facts in sup
port If my tte-no argument ON my SIDE permitted,
and without notice to me-you have adiudicgted upon
the Gaze thus prepared by you submitted to you,
and decide that Mr.. Peabody title l. valid one and
mine invalid.
Let us recur to the anteccdent facts In February,
1855 tie B,uch was deprived of one OF lts members
by the death of Mr. Justice Edwards aud soon there
alter Mr.. Edward r. Corles was appointed by the
Governor to fill that Office for the residue OF the term,
and which expired on the 3lst of Decemb r last GA
- H. -. .Ior., 8 kfufa frnnHa
notice that in the Frst Judicial District at the then
November election, Justice Of the Supreme Court
was to be elected in the place Of Edward T. Cowes,
whose term of Office would expire on the 3ls of De-
cember next" and hence at that election no va ancy
could be filed or xis.ed TO BE- then supplied IN the
term Of Justice Edwards.
On the 23d Of October last, Mr.. Justice Morris diei,
tins creating a vacancy which the Constitution and
laws required to BE- filed at the ne election after the
happening thereof. To fill this vacancy, and this only,
four candidates were nOminoted-hr linton, MI
Leonard, Mr.. Peabody aud mysef-and the fifty thou
taId votes who voted 10 fill the vacancy did so noto-
rousy and und ninby TO fill that created by the death
OF MI justice Morris. At that election to I'LL that va
cancy Henry r. Davies received 1890 votes; Henry
Hilton r, ceiyod Il, SIC; william IA. Leonard received
$685. and Charles A. Peabody received 1872 votes.
Judge Cowles continued TO sit and act with you as
Judge, filing the unerpred term OF justice Edwards
until December g. leJJ when be resigned that ONCE
Tie Governor regarded the election as irregular for
rant Il proper notice. and therefore void and on
the third day OF December appointed Edward T.
Cowes & Justice of the Supreme Court to hi the
vacancy oecasoned by the death OF Robert H. Nor
rs 10 which had been elected on The 9th OF NOyem-
Der previous On that day he took the oath Of office
and with your approval entered upon the discharge
of its duties under the Governor appointment On
tie same Sd of Decs mber Mr.. Peabody was appointed
by the Governor to fill the residue Of the term OF Mr.
Justice Edwards thus rendered vacant by the resig.
nation Of Judge Cowles and sat in Court and acted
with you for ,uch remainder for the space OF twenty,
seven days AT the expiration OF tli7 term he retired
florn judicial duties.
On the 9th of December, after Mr. Cowles entered
upon the duties Of the Office under the appointment
of the Governor, the Attorney General whose duty u
is TO institute such proceedings filed an Information IN
the nature OF a quo TaTrdRt0 aganrt Mr. Co~Ies,
alleging that be had uaurpei said Office and unaw;
fully held the same and prayed that be % oas'ea
Lereirom.
The Acknowledgement also set forth, as lie was
bound TO do If he believed the same valid, my title to
said Office. This complaint was submitted ~ Judge
Cowles and his eminent counsel and every TACT snS-
gested by them was inserted IN the complaint; 10
tlis the defendant demurred, and the Generai i.rm
in witch you. Mr.. Justice Roosevelt, sat as memoer
pIoDounc,d Judge Cowles's appointment legal AMI my
election Invalid In the opinion delivered oy YOU you
assume that al the last election there were three Terms
10 be fed teTeat, and you further said that II the
Din ciples contcnded for behalf OF the people were
sound there election either Of M Whiting
or Mr.. Covles, or Mr.. Deyies, or any other canl-
date either for the full for residuary term, Tor
eight year., q tor two months, or r eight year aug
"by law"
Tie Court Of Appeal did sustain, on fnl argument,
the principles coLtended for, without, however,
giving 10 them the effect you supposed and YET uh
derstaId you, gentlemen, as now holding, contrary 70
tbs decision Of the General Term Of this Distinct that
moi only Judge Whiting but Mr.. Peabody, who re-
ceivcd the least number Of voice, were both duiy
elected.
Permit ne, gentlemen to can your attention to the
udgn eft % the Court Of Appeals, and neither IN that
nor in the opinion OF the Court, Will you
ind the least intination that there were two
yacancie- 10 b. supplied at the late elecuoni ana
YOU VII on such examination also hnd tne', nov
witbsiandipg tie opinion delivered OF the 1shsra
Tern the Count OF Appeals dill hold that vahd eiec'
tor lad taken Place ard that Ju ige Cowle-s appoint
meui Wa Illegal and that wac entitled 70 SAID ONCE
mat cal your attention 10 the pfeci.e lan2uaSe
used by that Count. IL !. as follows IL y ordered
"snd scjEdged that Judgment upon the demurrer
"lcined IN this action in the said Supreme Court be
"ard Il = hereby rendered in favor OF SAID pAlntnt,
and that said defendant be busted from the Once ot
Justice OF the Supreme Court mentioned IN The CO.
plant II this action, aid IT IL sso ordered ana az
judged that Henry L. Davis, named IN thl- CON-
lau, L. and b. Is hen by declared 10 be, entitled 70
"the a;d Office by virtue of the election IN SAID com
"plalt ueit+oneC
The Appellate Court gave a. you well know, on over
ruhpg tie demurrer the usual leave tor the defendant
10 answer in twenty days, If he had anything 70 an-
,wtr. AID they ESQ declared that these Judgment,
above quoted should only become absolute a. tne emu
OF ss.C twenty ceys Ia the event OF the sald esint
ant bot answering. This time expir' on ne eeVsnI
II slant ard that DAY these judgments became ma
by JsC ge CoU-s emitting 10 answer, aud my ute 10
aid ohice became perfected. Yet you, gentlemen,
vLile Judge CoTles yet in possession OF TINS ONE
tv y,ur favorable jud nent, and before De was ou5so
tferefrom proceed TO renvestisate my te tha7 49,
Iuely settled in the event Of Jedge Cowles i0i an
,weripg by the highest Ccurt IN the state ahi equ
dcating upon the claim. OF Mr., Psaboiy, decas hlln
entitled 70 an offiee then actually hLcd by jung