The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-14


interfering with the books or the Office but with tae ose
iueif New charter, sec. n
Fh That the question Of title, 20 far ~ respects the
office Of Street Commissioner, cannot legally be tried In
this action the people Of the State must be parties for that
purpose and the mode of proceeding by quo soarrao in
Sixth. No Injunction should be granted, because in
junction s needed, and because Its operation, II issued
would conflict with the orderly conduct Of another pro
ceeding lawfully and Previously commenced under spe
cal statute before another Judge (athough acting in diff
crent capacity OF the grade and OF the court
seventh The regular and sufficient process for review
Ing the possesory question: and OF staying proceedings IN
to- and he General Term he In
stead Of single Judge, whether sitting at Chambers or
with these views, the temporary restriction necessarily
ceases and The order TO show cause must be discharged
The Case OF the Certiorars.
Before Hon. Judge Peabody.
July l3.-In TIC mater Of ne application ofD. d. Co.
nowr TO compel Charles Delin delipT him e books and
paper, of the Street Commissioners oGe Judge Peabody
said that In reference the application for the warrsuts
pursuant order made by him. the issuing Of them
opposed several grounds, two OF which were
worthy Of consideration The to which he had given
attention the operation of the pjuncion: He had
importance now "a there was no longer any Injunction
The second question he had examined but lttle as it
seemed very clear to him that writ Of cerorari being
issued with reference to his did stay all further
proceedings He bal scarcely doubt TO the effect Of
the certorarI certainly acted stay on his proceed
ngs; and he should, therefore, decline 70 Jake any fur
Mr. Field said that perhaps his Honor was aware OF
what inspired In the Ger he ourncd FRI
day An application wac made 10 Judge Davies 10 grant
ceTorsr VII Oh doue but Judge DaTios subsequent
issued an order declaring that the cerorar was not
tended TO operate stay of the proceedings The writ
procured by counsel on The opposite sde no doubt sur
reptitiousy.
the Of the people, from the supreme Court requtr
ing return bis proceedings that court. and he
could not what On earth was 70 modify the effect pro-
duced by such writ
MIR. Feld-I am prepared to argue that question.
MI Bu,ieed-whsn n respectable lawyer, like Mr..
Field staes that thai order surrepuously obtained
], who obtained that order myself must put in my mega
Mr. Field know that you goa that order Tor the pur-
pose Of staying procceoinss .nen The Judge said tina.
which II moi Intended. cell that getting Il surrepu
rousy.
Nj. Bustecd, saying so does no. make ii so. Ire
NJ FIELD said tina, the ccyuorari WINS Dot STAY even,
wihou, The order II was what Judge Davies himself
called H. brit,lm tlmen. Until the power Of the
Court exhaesed, wri. Of certiorari can issue.
Mr. Brady-rhat is The very question which your Honor
has decided. The question 10 be argued 10 the
po~er 10 modify the writ
Mr.. Field then proposed TO show thu. the Court hsd
come TO a Gnal decison the eth pending until
the warrants were signed aud when the warrant
Mr. Devn 10 prison signed there remained
act 10 be done before the the Court
were rlhlcd and that the books and papers OF the
Street Commissioners Office should be brought Into court
and property proved In them, and order Issued for
their delivery 10 the proper person Until all these thing,
are done the II not ended, and wri, of common
law certiorsh issue. Mr. Field commended tina; the
s aG sss Ss oder connr from ne
could not be disobeyed by Judge Peabody sitting there
Judge noi In court certainty but NOD Comm stoner
either he had been improperly called by the opposite
counsel Iks. order OF the Supreme Court was not null
ny yali any order In the books sssed In 20
or 90 ana would be highly improper FOR this, nfe-
rior couit question the leraliy Of the Supreme Court
n did we would coon be In state ef confusion that
cepes when oertapIy Lessen the respect for Judicial OPT
mons Judge Davies bad only dono vha the Saprems
did before him Here counsel cited Patchn against
he Mayor Boob yn, 10 wendell, 663 certorari Is
applicable here, Tor the that viii
suyihirg Supreme Court which that coUr. do
eif Ii be taien In any stage OF ,h. until
q court has done all thai u court and how
Other view could be taken tf by any iegs mind DO
pr could not comprehend Suppose The case serctot
fused 10 quash hat be done them Could they put
Ar sDeyln N j.li Noi at all They had no such
be- appeal Then what is 10 be doneg An OF N
| Legislature xli b. nalnned by Judse--lhAi's all
nseusy Issued stmedy could DC had By getting sreyo-
Nr Field sad ,hai would take vcs1, AMI there wsz no
Knowing wra' might be done 10 thai tins lie couiended
that VI the writ could issue 81 oil u pul'ifca the
Judge iavics order should be received II
ed s qualification In The original wr In ooocusioa, he
l. oert,rari would not Ne In this race in any STAGE
neither while the proceeding lending nj the csoe Of
the remedies are Summary, and shat mot he ineriered
with nor stayed and any n'oriereroe under tho writ
II the ceruorari can b. allowed In the case ai ALL "a
only lie antr everything The Court do has been
o. the booss before the court and ~ deserm mo
whose custody they shall be committed.
III am wrtbg IN both Of these positions Il is sil 10
the power Of the Sapremr Court 10 qualify the writ In s
| eject, k0d IN this case II has been % qualified.
Mr. Brsdy in reply 70 Nr. FeIos Arguments, said that
be wa surprised TO hear any one ooabt that common
law ccrOrari could stay proceedings. That the very
| thing sss invented Tor, a. It's nsme implies II was
instituted 70 enable Brius9 subjects % roove cases 10
higher tribunal and entirely Suspended all hc rulings
| OF the Inferior tribunals. u was coniendod by his
| learned friend that toe books OF a public ofloe
! can be taken out OF the hands Of the incumbent,
yet leave hin 10 redress, although search warrant
and warrant 10 commit BIN to prison bad been issued.
Mr. Brady coptsnted that this proceeding was summary
oue sBd ~us before Commissioner rsher Ju1se
lie could 5eevc that any such arbitrary powers
liberty 10 CEN ana nysdtg his home, and vet TIA, ma
have appeal. Mr. Brady Then entered elaborate
argument, to show that The certcrsd did Apply TO that
oae, In the Of which he cted Bacons Abridge
meni exp1re Heath and others, 2i Hill, expsTe Brand.
scbt g and Hid S65 Hicks Rgsrst!icEs, attn Barber and
ether CAGES &c argued that the Jurisdiction of the King
bench England nor Of the Inferior court could no
be taken unless there expressed sords the
statute that effect, YET MI Field said could be done By
Implication There never ". \ where ccrtiorar
vss had before sae joined that did mo- stay all pro-
ceedngs the Gaze and he contender that IN this The
the juvis csou Of his honor lie coniendcd that
necessary ~ his les-ned friend hal stated that dual
Una iuds nIeni had already been given. His friend
iounc Cd execution with judgment Bli The one was ud
oia-tho other was simply ministerial When his honor
determined that Devln should deliver up the books 70
Conover hat The Judgment; when be- the man.
date 70 deliver them up, that was The execron The.
Judgment n the Court far, was only nicriocuiory The
hna judgment would be ine giving the
property 70 TIC complainant His associates bad
.hd Judge Davies 10 this writ for the purpose Of
smynf proceedings, su that was al amateur perform
sncs o. tnets, and quite supcrfuous, AZ the wrt d "
eel would stay proceedings Judse Davies declares In
THIS order thai he did not vish Il 10 operate in that naa
Der, bvi the itN Gays shall operate Judge Davies
vla no know Nnai ccr'iorsri vas be (ar could pc
heph MI. feld meant 70 say that Judge Davies q
no, fnov That ht vii would stay these proceedings, let
bim cay % Tor himself from that berch on Wednesday,
when be (Mr -as moving 10 quasb the proceeding.
DJudse Davies wished 20 cay 10 his Hsner az kind Ct
aPoogy tsA ne dl1 no n'eDd that wit 70 sag the pro
ceedinfs hs Honor could only yer f capns holp t.