The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-12


denied number.
THE SIXTH WARD RIOTERS.
was rumored that the Grand Jury would 0rng in bills
against the Sixth ward rioters but they did not do So mo
City Judge told representative that none OF those
charges would be tried Me General Sessions rnIess they
elected To be tiled here, and whether OF the
prisoners would be tried til September except those who
already In prison.
The Court then adjourned vi Monday.
The Street Commissioners Croubles-Tne
Certforarf.
SUPREME C0URT-sPECrAL TERN.
Before Eon. Judge Davies
In the Halter Of the Application o. Daniel d.
Conorer to compel Charles Deuin TO surrender 70 hn nc
BOOKS nors and papers Of he Street Commissioners Derdrs
mem-A hearing was had yesterday morning, At eleven
o'clock, the order 70 show cause why the cerraI "a
granted in the above Friday, should not be Va
Gated and set aside.
Mr. Field made formal motion 10 qus,h the writ of c.
iorari.
The following are the points Of his argument
Mr. NKIDs poiSs.
First II the writ Of certiOrd would lie In this case
would enable the Court only to look into the question Of
jurisdiction. No othor errors could be Inquired Toto upon
the Unless therefore, the papers on which The
ctorayi Was granted show an apparent want OF orisdc-
tsn the writ should DO granted e Hill Is wend,
second The writ Of certiorari is not writ Of right, but
Of grace N allowance rests in the sound discretion OF the
Court II will never be allowed when IL will tend TO coun
eract the policy OF the law; when would produce de-
lay announcement 10 the public, or when there any oher
adequate remedy. us wend. 1913, Hill 3ss, Il Barbour
657.)
Third. 1t wout te OF the gre.tsst public inconvenience
in this case is adjudged by the order made by Mr.
Justice Peabody mat Mr Oonover IN possession Of Toe
chine de since the 18th Of June There cannot be two
persons in possession Of the office at the same time Mr.
Devlin cannot act and II Mr. Conover Is TO be prevented
from acupg the public cannot be served and That depart
ment Of the city government 10 paralyzed. Whereas If
Mr. Conover is Allowed have the benefit of the order
unade " In
and Mr. Devns rights, II he has any, can beAsserted by
your warrant without detr!ment 10 the public.
Fourth. The cerordr VIII not be at all In tbs case.
The proceedings intended TO be summary, and MOI
liable be cd by any other order or proceeding They
TIL the right is tried To suppose Legislature
tended to leave the summary prcc edngs for the delivery
Of official books 70 the successor to any ofcer liable to be
suspended by ctorar 10 suppose that they Intended
to institute eless ceremony (9oJohn,on, so Lynd
Noble; oovsD, 2o7; II wendal, Is; % wendal, 72I
IF Filth If the case was ono in which oeytier rs would
ne would not be irsued I'LL the final determination Of W.
.rs ssnes ana i2s ~ only "n'n inc
Mr. Busted moved that the motion be postponed a,
least till edpeeday nex the ground that he had had
such short notice prepare for It, His time had for many
days cpgrossed with this matter to the entire neglect
other mpor ant businessamong other things the mat
growing OF the change OF police All Judge Pea
body had DONE acting a. Commissioner, lisue
order for the delivering up OF the books aud papers To Mr.
Conover Pending the application for the sarrans, hs
had adjourned the Monday. 10 addition TO this
the suit Of the Mayor and Commouay, tenn porary in
anc.on had been granted BY Mr. just Roosevelt and
make that junction perpetual or not 90 that there wout
be three suit, growing out OF the matter going
In view Of the importance Of the case, and possibly thu
danger Of clashpg Jurisdiction, would be proper post
| pope the case till Wednesday, n not longer.
Jod,s Davies SAD 10 supposed from the PAPERS tn,
commissioner terminated when The application
made for the writ there also application for stAy
proceeding which he refused, 81 he did not understand
that the writ OF cJiorai intended 10 interfere viii
| the action Of another court, but 10 review L.
Mr. Field said the Court would be surprised 10 hear tina
when he slated on Friday that here had been an appnca
ton made for stay of proceeding the counsel pere npory
Hessrs Busted and Brady both sprang up to explain
stating that Mr. Field mistaken. They denied only
that order granted not ths, an application had been
made.
Mr. Field said the counsel and Court were certainly
led by the denial and the effect Of was that Judge Da
ves had parAysed the action Of his associate from Friday
10 Mono ay least In summary proceeding The other
side bad argued for an hour that The ctiOrdT was stay
| Of proceedings.
with the rights Of his associate He could relieve the mat
by making order that the ctiorar shall not be
deemed stay Of proceedings, which be would do
Mr.. Rrady-Wiu your honor do that without hear
| ing us7
Judge pavies-I think go so decided yesterday viii
NJ Brady said the Court had tho power TO take away
Mr. Devin rights They regarded IL az hardship 10 be
compelled 10 90 into this Argument now They could a'sue
the question Of stay Wednesday well as the qussi
| Of quWbDg tho writ. The Court had no longer any
| power over the writ; II functus oDicio The
| writ out OF It's possession, In the hands or
Judge Peabody, and nothing more coui be done up
until II returned An order would simply be ad-
visory The only question now was onlthe posiponemen
He Mr. Brady woad be prepare Wednesday 10 show
that Judge Peabody judicial function terminate when
be granted tie order and the issuing OF the warrant
purely ministerial Therefore, the oet0rdri woad amount
TO stay OF proceedings Juoge Peabody was 10 decide
Monday whether he regarded a. stay and Weines
day the Injunction case before Judge Roosevelt woad be
decided. lie could thai the other sdo would DO
prejudiced BY the delay
Judge Davies decided 10 grant order that the
ri should not be deemed stay Of proceedings, and post
poned the hearing the motion 70 quash the ctsrayi
until Wednesday rning, remarking that Judge Roose
welt should grant Injunction The ound that The city
has right control the books papers n, pro
perry that might obviae the necessity for any
Judge Davies order Ia - folows:-
srrfLSAroRY oRprR
An order 10 show this day uhy the writ OF certo
rari This matter should not be eantsA, having
duly Argued and served and anss argumen. 10 tered
that said vri shall be deemed 70 operate
any vsy - may Of proceedings before the sala Jsstoe
In this action or 70 Interfere In any way or 70 part with biz
act or discretion OF the application OF Daniel d Como
70 compel Charles De vin 10 deliver 70 him the books and
papers OF the street. C,mmissioners' Office. Aud Il Ia
further ordered that the melton 70 quash The writ be cd
journed 10 wednesday next at 10 o'c ooh.
HENRY &. DAVIES.
Unsuccessful Attempt 20 Arrest the sixth
Ward Rioters.
On Friday u,oyu,uS olcev sQbapc,c az tho Coyoccvs