The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-02-14

The Disputed Judgeship--1he Vacancy Dou'
bly, krlled-1ar. Davies Takes his Seat
Tho Court does not Recognize Him ~
Judge. r..fr
| SUPREME cOURT-aENSRAL TENN.
FEB l2-Ths morning, ct few minutes bef,se II
O'Clock, Mr. Justice Peabody entered the court took
his seat upon the bench which, by the scquiescspcs
Judges Roosevelt and Ceske, has occupied the
first Cay of the term. Shortly afterwards Mr.. Henry T.
Davies in ard ascended the judicial rostrum. He
then called to an officer for chair, and placed himself
the inner side Of Judge Peabody Both gentlemen look
ed at each other, but did not spesk. = y. f
At eleven O'Clock the hour Of commencing proceedings
Judges Roosevelt and Csrk- entered and on seeing ~
Davies seated, and looking though he said 81 am
here BY virtue Of election by the people and In pur
susncs % Of The JUDGMENT Of the Supreme Court" the
placed on the 6eek document which read nor
opened but which he stated be the remttitur in which
the supreme Court adudge that uness Mr. C0wes amend
twenty days M Henry T. Davies would b snti.sa to
county of New York The twenty days have elapsed,
Judge Cowles has not con'ormsd with those spuaons
Judges Roosevelt and Csrke retired for short time
and held consultation With Judge Whiting after which
eeeaed to cali the four stag q psS
| judicste.
During the Of the day the following order WAS
entered ON the minates:-- s ar6 wt#
Ordered That this Court does not recognize any per-
sens Judges at this General Ter except JUS
ues Roosevelt, Ciere and Peabody and that the Clerk
and other officers be directed to govern themselves
ccEdDRly.
Jutges Roosevelt and Cerks which is Of interest
just pow:-
Nsw YosK, Feb IL, 1865.
HoN. JAMBJ ROOSEVELT AND Hon. THOMAS W. CrERkE:-
GENTIEMEN-I in receipt Of your dated ut the
supreme Court General Term February a 1856 IN
which you state that you have considered the claims Of
supreme Court and You have decided in fvor Of tSs fos
me-. and sgainst the validity Of my title.
whom you pleased to designate "cn sstans" to
,he office OF Justice OF the Supreme Court and without
snS without 10 me
you bave aojud,c&ted upon the case by
subrn tied 10 you and oecde that Mr. Pesbodys
Mls Is a valid one and mina invalid.
Let US iecur to the aDtecedent faots-In February,
1855 the Bench was deprived of of its
the Death OF Mr Justice Edwards and soon therea tor
Mr. Edward r. Co~es appointed by the Governor to
fill that Office for the residue of the tern and which
expired on the S1st of December last.
On the 2Sh OF August last the Secretary of state gave
notice that in the First JUDICIAL district at the fol-
Court to be elected, in the place of Edward p.
Cowes whose term OF Office would expire the 3lst
Eecember next and hence, at that election, 40
/ ahe term OF Justce E0wsrds -
On the 23d of DC ober last Mr. Justice Morris died thus
creating vHcaoey, which the constitution and laws
quIed to be filed the rext ection AFTER the happen
iig thereof To ill this Vacancy, and tnis only
Ntr.
Mr. Peabocy sndlmyeec- atd tie Gny thousand volers
@ho voted fill the vacancy, did 90, notoriou y and
uuceniably 10 oil thai created by the death Of Mr. Jus.
,ce Norris. AT sha eecsion to ll that vacancy Henry
Dsvis recei ed thousand nine hundred ana
iheys Henry Hilton received fifteen thousand
five bundled and twenty six; William H. Leonard re-
cevsc nine housaDd nine hume red aud thirty three;
Charles A. lesboo, received five thousand
hundie and eighty two votes
Juoge Cowles cnsinued to sit and act with you al
uoee, hlug the xpired Of Justice Edwards,
VI Dece mber 1855, when he resigned that Office Toe
he
proper notice, therefore void the third day
# December appciuted EowardP co ~es Justice Of the
death Of Robert H. Morris to which had been elected
the 9Th OF November previous On that day he took the
discharge Of its duties under the Governors appointment
On ire ame ,hird OF December Mr.. peabody was ap-
pointed by the Governor all the residue Of the Of
Mr. Justise Edwards thus Diered by resg
nation OF Jncge Cowes and sat in court aud acted
for such remainder Tor the space OF twenty
days. at the expiration OF this term he retired from judi
cIsl duties.
On sixth day of December after Mr.. Cowee entered
upon the Duties OF tie office the appoint
ent Of the Governor, the Attorney General,
duty 1t rs to institute such proceedings, flied
nforma,ie fin the nature Of qo ,oarrano against
Sr Cowlss aeg1g thst he had usurped said Office and
nawfuy held the same, and prayed that hs be ousted
to do, If he believed the eame valid, title TO said Office
1tls complaint submitted to Juoge Cowles and his
intered in the complaint To this the detendaut de-
INJURED and the General Term in which you, Mr. Justice
poinment legal and my election iuvaSd IN the opipn
delvertd by you you that at the last don
,heie three terms to Be filed thereat; and You
further said that the principles conended for behalf
T the people sound was election either
OF Mr. Whiting Mr. Cowles Mr. Davies or any otoer
candidate either for the full for residuary tenn for
esh Tor two months for eight years two
nh for any other certain period ao vel by .awo
The Court Appe cd sus ain on full srqnment the
them the effect you supp sed and yet understand you
esn'. uen as now holding contrary to this decision of
0pn nj Ar int that IuAw
Whiting, but Mr. Peabody, who received the least
her OF votes, were both duly elected.
jnegn ent # Court Of Appeals and neither in that
in the opinion Of the Court win you dnd the least
the late election and you will on such examina
on also End that notwithstanding the opinion deliver
ed a. the ssns.s term the Court e Appeal. did hold
Cowles appointment was illegal and that entitled
to said ofhce must call your attention to the precise
language used by that Court; it Is a. fol ows:-
s ordered and adudged that Judgment upoa the
& action r. IN s, Ss .e y Sa s BE-
epdant be ousted from the office Of Justice Of the supreme
ordered sod sdjodsed hat Henry 3 Davis il
toned - '"''' '''''' ;" '"'N '''p-'"' A''"'
The Appellate Court gave as you well know an ever
Sueg the demurrer the usual tor the defendant to
in twenty days. be had anything answer.
Ana they also celaied that these Judgments, above
quot should only become abs oute at the end of said
twenty days iu the OF said defendant
ng This tine expired On the eiev enth instant and
tnst day these judgments became final by Judge
Cowies oDisug 10 answer and my title to said
Office became perfected. Yet you. gentlemen, while
Judge tows yet possession OF this office by your
favorable judgment, and before he ousted thsrerom
proceed TO investigate my title thus absolutely settled
ln 'be event Of Judge CowIes not answering by the
bebe.t court in the State and adudicatng upon the
Claims os Mr. Peabody declare him entitled to Office
then actually filled by Judge Coves in conformity with
the judgment Of your Court, then unreversed aud the
ight 10 which finally settled in my favor upon the
Inspecting cf The contingency which has occurred.
II durcg this interim of twenty days. bet ween the
rendering Of judgment and the expiration of the time
granted Judge Cowles answer that received your
ef February a. informing me, in substance that you
Lac sseigned the seat to Charles A. Peabody.
This etjnon coming from gentlemen holding high judi
si stations is certainly titled TO respect was pro-
baby ant ss full and complete notice OF what the
opnfn OF he Court would be onan important case when
bst case sbnud come properly before them. cannot,
& course regard u in apy other light than notice OF
fp'pon TO he given at fu,ure time; for far ss
tuoN pSfy had appeared before the Court claiming
l.l