New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-11
A CERTIORARI FROM JUDGE DAVIES.
THREE JUDGES BY THE EARS.


Though 10 O'Clock was the hour fixed for the SETTLE
mept Of the order on Judge Peabodys decision.
nothing was done til ~ O'clock Mr. Brady, owing -
mistake as to the time not arriving until that hosr
| whea
| Mr. Field said he endeavored yesterday 10 got .
more particular description Of the books and pspsm
in the Street Commissioners Office but had only beea
able to obtain an imperfec. schedule, which he pre-
seDted, and asked to annex TO the order submitted
| yesterday, amending the order by adding, aftar
! books, papers, maps and documents the words
Z" including among other things the books. papers,
| /" maps and documents mentioned in the schedule
] " hereto annexed, marked A."
Judge Peabody said il was his impression thst The
order should be entered in the first place and that in
the event of failure to deliver the books there should
then be application for the warrants. The statute
was esceedi ely meager still he thought from analogy
the warrants should be regarded executions Tor tho
enforcement q This order II ght appear to hsye
| been mpossibl. Tor Mr.. Devlin to comply with the
ordcr; there ieht have been visitation Of Provi
denos, or other preventing cause; aud he was Of
option tina. Mr. Deylin should be heard upon that be-
the service Of the werrants althOSgb to be sure
| il would be matter OF FORM
Nj. Noyes said they were under the impression that
after The order made, it was the duty Of the de-
| fendant 10 make affidavit at once, such would
| be required 10 exempt bin from imprisonment. They
had 10 objection TO aording him the utmost indul
gence: but the public interests required that there
should be no delay. He formally invited the defend
ant aud Cooperation Counsel to assist them In per-
feeling the memoranda of books and papers which
they had partially prepared. Mr.. Busted laughed
Ironically. 49,
Mr.. Brady was not aware OF any particular oblisa-
ton he under to render assistance. II was noe
customary in legal other warfare TO assist the enc
n.y. But grsytly, they proposed to furnish no facih.
ties wbateyer the contrary they proposed to emoer-
their opponents as much as they possibly could ~
all lawfsl aud honorable and none other would DO
r. sorted to- 1t did not deyoye upon them to throw
ght upon the path the other side were travelling.
They acting without authority, and this petito.
was q nulity 1t necessary that the books should
be accurately described, in case Of replevin He
a eged that there was total want OF jurisdiction. IL
the books were taken il would be trespass, and II Mr.
Deviin was arrested he would be dlsembarrassed ~
habeas corpus. There evidence that the books
named were in Mr. Deylins possession In what ne
raid Yesterday respecting the Sheriff, Mr. Brady sald
be ouly minated that the Sheriff would hardly una
himself iustt ID taking the books and papers pend
tie INJUNCTION OF Judge Roosevelt. lie moved thar
the settlement. of the order be postponed TIL Tuesday
TWAS true that The sa,ut was very meaSer tine Pto-
visions If the statute recited but 1t seemed to
conts n late that the books ard papers should be &C.
| cura.elS described. The Jaw would no. inprison
| man Tor net dcirg an impossibli;y. II might De
that TIC books were removed 20 tne Oh! n.u, a. -,
eyerts as lawyer he denied that they were ia Dew
Mr. Field said they did not ask for any lislx from
tie ether side. fhey were willing TO take the oour:e
suggested by the Court-to issue the order and await
the issue a the warrants until Deyn was heard from
At the came time the statute did not contemplate suon
| tourse, although it did not prohibit it. They hsh
70 doubt about the Jurisdiction eLo they would take
the hazard ii there any. IL Mr.. De'lin could
rot he found he was in Court, within reach OF Mr.
Fed that suld be enough, if he could let the pro-
served. All thai he wished was 20 aineu1 tuo
| RIDER fret submitted.
MI Field proposed TO put in affidavit that such
were the book &C. belonging to the office, but the
Cont the u9ht il would be more regular To proceed
III on .he Dapers us they were without an 1d6h0nal
After come It'll. TAX between Judge Peabody and
Mr.. F.J. the latter portion 81 the orcer was amend,
ed 90 tia, il follows, the previous recital
anirg before, with the exception OF cne or two
| grammatical alterations.
| the AMENDED ORDER.
tie 1i s9Sos the sS '5a I
.sid Dv!s Il, unit, refuses to deliver Tie I.u
THAT d cs.. D'vn saa
70 % Once .. 81. Of II. s.s
bso Or IN asauit thereof that warrant issue sheriff
the City County New YORK commit the said Deyn
M Of 10 the e d 9oao1 hs MAPS and
document be otherwise discharged according 70 law And
such being made By said Dsvn search
the dy the apartments and occupied and SGT sps
office Stree; GGm%onsT Of the cy @ .he OH
books papers end documents and to seize them and
Mr. Moves said that be would read affidavit stat
ug hat the order had been served upon Mr. Devln,
| ard that he had refused 10 deliver the books He
| .hereupOn asked for the warrants at once
Mr. Brady read Mr. Devlins answers esfolows:
"M Deyis answer. the demand made upon him under
the order hts Gay made BY the hon Cnae /, A. $
20 other possession Of any property gOnnected With the Office
3 a:oSsg Hs s :ass ain az s
the Mayor Aldermen and ConIonaty of the City Of New
YORK , PEE 9 H. tsss as "a. ps
il force an injunction duly b. the Hon Jams: Ro9ss-
s se % .'is1 10 the Aforesaid oder copy oG
NJ Dtvn states Ss that directed Mayor The CITY
BY the Counsel 70 the Corporation .. % ss Sy
Mr. Moves said the answer in the first place was not
under OATH and in the next place two-shirds OF was
contuuacous, and would warrant acSmmitta Tor con-
tempt. II was only repetition OF the a,gumen~
which the Court had decided to be unsound- Whne
was alleged as an excuse only an aggravation OF
his violation Of law in refusing 10 obey the order Hs
advanced nothing new.
Mr Brady--The matter OF the injunction 10 new.
Mr. Eoyes-The answer is that he does not recoS.
pize the order AZ valid in law That Is PLAIN ana
tapabIe contempt committed in the face Of the Court
Hr Brady-"C0ur.' There is no Court here.
Mr. Ncyes-This is for the present purpose CSuns
and it is to be respected as one OF the nrS'
| the State. A. IL
Mr.. Moves went on 10 point out the irrelevancy0
the an. wer, AID Judge Peabody said the Injunction
ard allegation Of physical inability were all the pa"
ef the answer that need be replied TO. ,
MIR. Hcyes-He does no. allege physical inability;
He acknowledges official possession when u ecs1sA
possession AID as the INJUNCTION does not appear om
ciay in this case there is nothing Ief 70 argue anu
| We ark for the warrants.
Deylin 20 the demaLd was much part OF me pro
| ceedipg as we tie demand. Nwsa ne~ tningW
him that such paper must be under oam. ouu ~"
would annex the iurat II il would satisfy inc COu
| The question then beiog raised as to he capsc'y
| wherein Judge Peabody was sitting, wnstner -
Judge Of the Supreme CouIt or CommSs'"7' u"''
| o special statute. 80, I...t that
Mr.. Brady eVppe:,d there could oe no .uoposfos