The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-08-23
Albany sPSslAL TERN, July, 1870
MOTION FOR MANDAMUs.


TIE Pepts the Relation Of Cairfes A. Peabody RS
me AScSrey Ceneyal.-The papers upon which the mo
ton founded ftaie oat at the general election OF
Judges held IN November last the reator voted for
by the electors Of the First Judicial district 10 Ill the
cancy occasoned BY the death Of Robert II Norris
Of the Judges Of tic supreme Court The relaor claims
that be Only eecee 10 d such vacancy. The rca.
Tor further aerss that Henry h. Davies without aay
bga warraI authority right, has since the l3th Of
Fe0i nary 1885, held ufed and exercised the office aud
continues 50 70 do. The reator further states that he e
stree 10 prosecute acton 70 be broagh, by the pccs
upon his reiat on or The purpose o. establishing hs
right 10 the Office, and that he has male repe,ed app
eaors 10 the Attorney General 70 be permitted, by the
aReIcy or advice Of some competent counsellor of this
court 70 be approved BY the Attorney General to
nlence and prosecute such action and that 20 nccin
nifty the state against the Of such action 70 bad
executed and delivered 10 the Attorney General bon 4
the slAcicIcy Of whch had been approved By him. #
also appeared h0l Tie papers upon which TIE m, lon
founded thst the AttoEney General refused TO
The aoiicn orio allow TO DO prosecutcd IN the
OF the people. II rel,iur asked for aan1amus,
70 compel him prosecute the action. Charles UConor
and H. L. Clinton ior Tehiori j. H. Porter loo Attorney
general
BN I'M cotnr. HarTis Judge AT the common law no
but lhc officers OF nc Crown coad sue out he writ Of
obo udrYgnio. IA was regarded as tic Kings writ az
right Be issued 10 Of the usurpaton Of an Office Ia
violation Ire ~ right This wit, az an early day
save place 70 ne more convenient proceeding Of 81 IN
FORMATION u tie nature OF quo tocTToao. Il was the
practice Of we tLeeis q bs : ofn y ne no' -
their Own discretion Glcn the application 3, pirate per
oct thee were NJ named laors Ia the pro
cctcings. (see Cole % C1m. Iniormaliopi, ilsl
b, tte act 81 rad 5, vii. and ca. IL, which took
eject "a lGe3 70 Information could be flied "wiaoui ex
press orders 70 Dc gwen ny The Court q Kings Bench Ia
piormstcns restEs % corporate offices frsnchi.cs
me name d tie restor houlo be mcunoned IN the nlor
nation. From he passage Of tnat act which was "a
I'LL was e practice 10 insert The name Ut tbs reator
in ali lnormacps W the nature Of gal tcarodrt whc.
ther they related 70 corporate on = or any other.
For while acr Il referred 10 the Cour; 10 deter.
nine whether an Information should be rled or no. i,
was vory mccn matter Of coursc 70 aoE u % BE- do1e
In Rex vs. saTs ept + X 4o7, was SAID BY lord ken.
yon, Cnief justice that "shcn lord Mansfield 40
10 the found hat n'ornstiops the nature
quot oTouo acre mad almost for asking. BIT be soon
saw the npohcy add vcxaion such rule aud there
fore before be gtsD'ed any such application, 10
yassed the case and urhss he found strong ground Tor
questioning the ceicbdants cite, be and the court it
M with him always re,gst ~ 81 the ssdrmati 90
Eycr u AZ period has been he pra tce Of re
fngst Judg's 70 exercise discretionary pcS.r ia
grating Withholding information. according 10 the
particular Circumstsnccs o. the case.
The same Discretionary power vas vested ia the 81.
state government ~ tie Alb sccu q the act for
dcring the proceedings Son wits q mardam1 and Ia
formations In Tie nature Of quo uarrano more speedy
std tncctua. passed February ?, liSs, was provided
that TN CO. any person persons shall usarp ntruic
into. uuawfuly hof ami execute any Office or iran
chsc within ts state, tthali and may - awful y aid
Tor The Attorney General wnh The leave Of The supreme
Court 70 exhibit one more iuormauons 10 the nature
a 4vo r05ros, - the relation q any person CT per-
s,ns dsspg r. prosecute The same wn, shal he
M utoncd ia such information intyrmn'ions the
a,of 0r REALTORS II iOs). Under this title the Court
exercised the Nt u dttnrmirnr whether an NfOrmaiDn
Should be u.ed rot. IN ue People " Svcrtsg Il
Join lsi) leave refused merely upon The rroani
Nat The term q the ofre ~ dute would expire before
/ a : right could be tried
~ hc Revised etiges n 1870 ,hs Discretionary power
vss vthdrawn nom the ADD vested IN the A,tor
rcy scu sra His provided tha Information IN tie m.
tute ~ go grror' may he Sled IN tte "a ,rems Cour,
Of tbs Stat. ~ ne Attorney General against ndvduas
upeH b. own rotation upon The relation Or sny private
patty and without arulyng T. such court oy leara,
wnn any perton tal uautP intrule INTO or unlawfuy
bod or cry public ofce 81. q 81 So el3
Tho srmc provision Is enacted TIE 482 ucct ~ 81
| ne code II Is nov or - Attorney General ~ ~,
he Court ~ ct,crmBe whether any par,er ar case
+ proper that acton 70 try tho right 70 an ctasr
sbc, VI he bro CHI ~ not.
1bst was The intention q tho legislature d transfer
the exercise 81 This discretion from tue court 10 he A.
crney Ger Grail and thus reinvest him with the plwev
he had nt the law, IL evident, % nk from ~
act hut write thus authorizing the Attorney General L
as information to toy the gh, 70 puohc odlca, win
ont sppymg Tor leave stu required such leave y y
obtartd before ding information against corpnri
\ uon t2RS tt3 500 Code 1907 N the latter caae
Expressly declared o. be bis duty 70 institute proceed
hgF uIcp tave bong granted by the Supreme Coart O
! lodge thereof.
There soothing IN the language Of the statute which
nd caes intention the part q the legislature, wher
darensng win tie necessity o amp ny y toe c0drt to
leave IN commence the action. 70 surrender al contro
ever the proceeding On The contrary i plain think
that L was intended tha The Attorney General ?, ogij
81 o. The cfccmsahces q each q should he pre-
tented n hr determine whether the prlli, interests
require tha sun should Be prosecuted Although ri.