The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-11-12

Nov. 11In Ne mater o the Hube1S Corpus of Annt
Bd0ot Smith, confined Alleged Lundtic-This mat
resumed in court this morning at little after nine
O'Clock. Tie lady present but represented
by her counsel Mr. selah squros Qhe reator) and Mr.
Richard Bustood.
Mr.. Squircs read the following
TRAVERSE TO THE RETURN TO uR WRIT
Tho answer of s-iah surc- the petitioner this mat
ter the request Of Thomas Gregory smith In behalf
Anne Basset Smith the return Allan Macdonald 10
l. He denies, upon his Information and belief that the
sad Anne Bassctt Smith al the time of making said
turn or now is IN the charge Of the said Allan Macdonald
AK patient.
. That he has no knowledge or information, except
such IL derived from said return, TO the manner IN
which the said Anne Basseu Smith was, the
9th day Of March, 1850, committed 20 the care
and custody Of said Macdonald, or Of the Application
of Augustine Smith, her brother, the 9th day ol
November, 1857 for warrant before two justices Of tho
peace of the town Of Flushing Of the issuing Of the
warrant mentioned in said return, or of the commitment
Of the said Anne Rss under said warrant by the
feers Of e poor Of said town TO the charge Of tho said
Allan Macdonald he therefore, denies each and every
allegation relating thereto in said return.
Ho denies that the alleged proceedings set forth
secondly IN the return OF the said Allan Macdonald are
sufficient in law 10 justify HIM, said Macdonald in retain
INK the charge and custody Of the said Anne Bse smith
and he claims the same benefit Of objection he hal
specifically demurrcd to said return in that respect
4 For further answer 10 tho proceedings set forth
secondly in said return, he says that the
mencod after was understood and known by the sad
Allan Macdonald aud by the SAID Augustine smith, that
application about being made for the
habcas corpus IN his matter; that said proceed
Was gwen 70 1Y she ssd nDs Bas.s,, an smith, or ANY
IN her behalf 10 contest the same; that upon hts
formation and belief the physicians were satisfied of the
them by the sad Allan Macdonald and the said Augustine
smith and that said proceedings are not conclusive upon
inc sald Anne, nor upon ths p'uuoncr nor any par
against AN inquiry IN her behalf In regard " her alleged
insanity.
O. Iie denies upon hs information and belief that sad
Anne Basse Smith At the time of said or now
intellectually -
dsordered in her endanger her person
the person property q others II permitted 70 20 AT
large that she has thus been any respect insane or
dfordered n her senses At any time since she rst
placed in the institution referred 10 in the SAID
q That II, upon the btb day u November 1857, the
said Anne u smith lunatc insane person then
he charges that since that time she has become sane and
November II. 1851 sEAH s2unus
Immediately upon the traverse being nled Judge navics
said that In view OF the crowded of The civil calendar
and of the duties gncd 10 him Special Term he
would be Obliged "a refer the lCts dispute the plead
ngs 20 referee In order that testimony might be taken
Mr.. squircs tor Miss smith, strenu0usy opposed this
course and denied tho authority u the Judge " make
such order citing decisions of The Court of Cbsnoery
os this state upon wr,s of d. Iunisoo tn7r,o and IN
cases of habtual drunkards 10 show that fgncd issue
must b. awarded and the question tried BY jury The
learned gentleman cited numerous authorities from
fully prepared brief In Illustration and support of his views
Judge DAWES do this, sir OF my own mcson; have
the right 70 do and do not the consent q the
He ~ The reference. Has the Court oflcer of
,he Court right TO refer cause 70 have testimony taken
by q referee9
Mr. Rusteed--with great Difference 70 you sir deny
your right In proceeding upon writ of habess corpus
refer the issues upon the peadings any referee n
your Honor states you sitting here officer and
not Court, you clothed ony with the special urs
dscon which the statute confers and which be
cised only In the that the statute directs
Ofrcer In this proceeding you not clothed with the
plenary powers OF court having the jurisdiction OF the
Supreme Court of This State The habcas corpus statute
itsen provides what You may do, and what you must
The Gath section Gays hc party brought before such
court or officer may deny, &c, "and herenrun such
court or Officer not referee shsll proceed IN a
mary way" not by q reference, :" 20 hear such
allegations and proofs" not 20 read them a. re
ported by q referee Why, sir, the very object
q this statute would be destroyed by reference.
the sparkling eye oontempnous glance cf Witness
testified the causeY and manner of eefylng
often Of Importance determining the amount %
credlbHy 20 which the witness n entitled han anything
he may eayS A. 10 the power Of your Honor b refer at
ALL in civil case, direct your attention 20 section
271 Of the Code o Procedure which allows the Court 20
compel reference only in the given and none q
them analogous 70 the proceedings on writ q habess
corpus.
Judge navics-This question, SEQ, s one that admits
Of doubt win take the citations from the counsel,
and consult with my brethren Of this district as " my
t.ower 10 order reference. will also state the
name OF the gentleman to whom intended 10 refer tMr
Henry fIson n he would accept n
Mr. Bnsteed inquired when the Judge would be ready
10 decide the question.
The Judge said as soon A. poesibh.