New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-18

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If decide that subject and even he refuses what
am asked 10 doio ssus hi- waraut-until the oeCii'
orGrT quasbcd So that that case il authority
for the act ! am h'ked to perform, and indeed, IL
TO be as umeo throughout the OPINION THAI rue
writ did operate to suspend the powers OF the officer
after be had made his decision, which is exactly the
condition OF this case.
after the csrforari i-sued and served to the eec.
that said writ should not be deemed 10 operate a.
stay Of proceedings or to interfere IN any With
| the proceedings before me, prevents it having any
sucb effect But if the certr0rarI the day before su-
nepded NV powers and fancticns il il not easy 10
how an order Of this XII could restore hem-he writ
being still in existence. The writ Itself Of it, own
force (or-pr0pio ris0rel when allowed and served,
mr ated n powers, II it bad any application To dis
turb the proceeding at all, and while 1t remained
VI ked and in force writ doubt very much if its
legitimate effect could be thus modified by order Of
the Court itself. My powers are suspended, if it ALL
by transfer Of the proceedings from me to the Sd-
pfeme Court, and Il necessary Consequence of THIS
would seem t. be that l am not in possession
of the case, ard can take no steps in it.
The allowance Of the writ was unconditional,
and this order, If it have any effect must
have the effect to revoke part OF it, while by IT.
terms il would not so much designed TO REVOKE
the allowance as TO explain it, and declare order
that the writ shall not be deemed to have certain
eject usually supposed TO follow az legal cOnse
ouepce from it, What the effects of a certOrdtl
is question of lew, and is rot usually to be deter
mined by declarations. II was urged on the Argument
that the Court when it allowed the writ, refused
allow a STAY of proceedings in addition to it. Tha,
w0ud not alter the effect of the writ in that respect,
ard il seems necessarily operated OF itself rs stay
The mere saving that writ Of ceTtiordri habe0s
corpns or other process. shall not perform the func-
iohs assigned to it by law that of these wri;s
shall have the effect Of the other ia particular case,
Cannot make such writ operate as II Is declared 20,
differently from its legal province. The Chief ard
perhaps the only direct effect of this WRIT Is to emove
The proceeding from before the officer to whom 1t Is
issued 10 the Supreme Court. Can an order to the
effect that notwithstanding it removed from BET re
him TO the Supreme Court still it remains, and sd All
be deemed to remain before the officer from whom
is taken have that effect and make 1t ubiquitous 10
that extent
ia some of its GLITTER dfcta and head nctes, seems to
co, Aict somewhat with some OF these views | am
aware but think that nothing decided in that case
does conflict materially with them.
The fatal effects of the wnt 10 this proceeding, the
fact that it terminates and annhilates the whole mas
ter would be excellent ground for argument to the
Legislature to show the necessity OF modification OF
the law, perhaps, and could perhaps nave Deeh prop
civ addressed to the Court in opposition to the allow
ance of this writ in the trt instance aud may be o
service on the motion to ouash il if such motion
should ever be made but II have but little weight
with me in determining what are the legal conoe-
gu,Ices of the writ when allowed ana III force
That the Court misunderstood The situation OF tle
proceeding at the time Of the allowance OF the WIT
and would not have allowed it, if il he'd correctly ua
10 the same Court to qresh IT, bu canLot know the
fact and il could such information would not prop
cry be the basis Of action by me. am to obey II es
il is 80 long il continues TO stand, not 10 indulge Ill
specuations TO what might or would have been
done under ether circumstances My duties depend
on what is not at all on what 1t might nave peeh or
what was the intent Of the Court at the time except
as it is expressed by the fact OF allowing IT. Inc iac
that the Coui refused 10 graut stay OF the proceed
rgs ask ed in connection with it, and the fact that tue
sumo Court which made the allowance has since made
the order above referred to- seems TO show beyond d"
doubt and by double proof that 1t wa, not me mt
ton of the Court that anything having the effect OF
stay should receive it, SANCTION and this TACT beng es
ablished would probably control ON an application 90
that Court in which alone the inpedment complained
of can be removed.
TWAS urred also. that the signing and delivery Of
these warrants were judicial acts, aud the therefore
they were not restrained by the ce'uorar' But my
Judgment has not only been announced orally, but re-
duced writing III the form OF an Oidel anu siSheu
by n ard delivered to the applicant. have there
de cded that TIE applicant should have the warrants
L. it possible that the writing Of these papers ana
signing and delivering them, are judicial acts aga
If they were, they far separate acts IA.
tnct from the previous proceedings at tee ria tnht
the principle which authorizes the completion OF
trial because ii is begun, as IN the case where tie
yenne had been awarded, would not apply here 10
Justify me in procee dipg. But il seems to me that
certainly is not judicial but ministerial act, and
that therefore ] am bound to refrain.
Finally see mode OF escape from the restrain
ing Influence cf this writ while it remains in force,
and the only escape for the applicant seems to be
through the Court granting it, aud to that Court
must commend him. My hands are certainly bound,
/ think, and see hope. of disenthrament save by
the removal of the bonds by the removal of the writ
Itself and accordingly constrained to suspend my
proceedings and decline for the present to issue the
warrants.
The matter was adjourned to Saturday Mt twelve
O'Clock, to wait the decision Of Judge Davies on the
motion to quash.
ARGUMENTS on THE cERTIoRARI
Judge Peabody having concluded the reading OF his
decision Judge Davies proceeded TO hear the argu-
ments of counsel in the application of Mr.. Conover 70
dis olive the certiord5i.
Mr. Fields, in behalf of Mr.. ConOver, opened the
case The following are the legal points OF his argu-
ment
|. II the writ Of certiorar would lie at all in tbs
case, it would enable the Court only to look into tn"
question of jurisdiction No other errors could be m
quired Into upon the return. Unless, therefore, the
parers Oh which the certiorar was granted show an
apparent want of jurisdiction the writ should not be
gIented.s e Hill, 8; 70 Wepd, 800; 2 Seld.. 3O9
.. The papers do in fact show complete jurisdiction.
The statute z r. s. 10. " %, o0l has been strictly
pursued.
3. The writ of certorari is not writ of right but
Of grace. Its allowance rests in the sound discretion
Of the Court. 1t will never be allowed when IL WIZ
tend 70 cOuntervail the policy ct the law or wnen
would produce delay incOnvenent 70 the Pu0Ic, 9r
when there is any other adequate remedy 10 Wend.
1875; . Hill, 39s; u Barbour. co.,
4. There il another adequate remedy; ina i, ny
coute,ting the jurisdiction when the validity OF the
warrants is asserted A want of jurisdiction can be
set up at ali times l9Jobns. 80 Bgeow ast Stearn';
| Hill, $50, Bloom agt. Bsrd1k.) .
g. certor0ri issued in this case before me COM
pleiion Of ANYTHING TO be done by Mr. Justice Pea
body, would be Of the greatest public Inconvenience
1t La. bren adjudged BY the order made by INN that
Mr. Conover is the possession CT the once OF oueeI
Commissioner. He has had the franchise de Jacf0
snce The Eth Of June There cannOt be two persons