New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-09-03

- 49,. p, e. r. kosrl ait Ar-on Wils Ju.tiCr, &c
Tb;s "a motion to g mandstnCs re1uiiing tae
5fendan. 10 issue ss Wa.CG.t 70 "cmcye tenants 10
der su,pu airy proceedings had 6e:tve h'm, betwees
landlord hDI ''n'u,'
The rfluor. a landlord ms, tuted proceedings gr.
der chapter 81 pat Of 4 Revised Statute, TO .e
move his tenan: for non payment Of rent. The jus
tice CecdtG favor Of The landlord. aud the tenant
appealed 70 tho Common Pleas under the Authority Of
Gaze recent.v decided 10 that Court az General Term
holding that appes. would be N consequence Of TIE
amendment of sec 3J2 al tie code bylaws OF lSs7.
The counsel Cor the landlord moved in this case for
m8ndamus.
Justice Davies rendered decision this morning
lie held that the act of lsi9 allowing appeal. to the
County Courts IN these proceedings, applies only 70
proceedings before Justices of Peace in the county;
that the anne rd.neut ef $50 Of the code does not
thorise appeal in the Common Pleas, because that
section provides for appeals from the judgments OF
inferior courts, and That the Judgment 20 be appealed
from ust be the judgment Of II court Aleoatbat by
Al of the code proceedings Under chapter g. pat
of the X. S, expressly excluded from the opera
ton of part second of the code, go thst even if the
section amended would by its language justify the
idea that appeal could be taken. the code does not
apply to summary proceedings ct all: Tie Judge
also holds, that the only way of reviewing decision
adjudication Of Justice of District Court 10 these
landlord ana tenant cases il, by the Supreme Court
upon the proceedings being brought before such
Court by c6riOr0rl that the Common Pleas Court has
authority jurisdiction in euch cases. and that It's
interference in them is unwensned by law, and void.
of cases already brought into the Common Pleas
Court on appeal and that it will aso affect the case
Willard sst. Lsfarge in respect to the late Meiropo
Titan Theater.
TIE CASE OF MRS. CUNNINGHAM.
PROCEEDINGS on TIE WRIT or HaBEAS CORPUS.
At O'Clock, yesterday, Judge Peabody took his
seat to continue the hearing in the application Of Mrs.
Cunningham, on a writ OF habeas corpus to be ad
Tod 70 boI Mvc funny inoiar in
Court, with h,r council, Mr.. w. II. Stafford and the
additional counsel in the pending proceedings Mr..
Mathew Iiele Smith.
The question pending at the adjournment of the
COur. on Tuesday wes on the melton of Mr.. Hall,
the Dst1ict.Attoiney, to dismiss the writ Of habeas
corpus. On this point Judge Peabody said:
"In regard TO the question which was submitted, aud
which was pending at the time Of the adjournment.
have given what precious few minutes / could get
to its confederation for the draft upon the time Of the
Court in CT parte business includes night as well
es day. | have come to the conclusion, perhaps
because have not had time to consider and decide it
fnliy for the present. to deny the motion reservng,
no acver the night to further consider the subject en-
braced ia the notion"
After some brief discussion TO the proceedings to
be taken Mr. Stafford put in the following traverse to
the return
Tie Pcop1e 0q. Emma A. Bur,tn.-Emma A.
Burden traveIses the return made by John Gray,
Warden Of the City Prison, upon the writ of hobeas
corpus, and ayers that her Imprisonment and dePr-
walton from bail is unlawful, she is advised and be-
lieves, this, TO wit that the committing astrate
VIM. s. Dayitcn, esq, had not suthcen! proofs
before him to iustify such commitment; and she
alleges upon il formation and belief that the annexed
are true copies Of such proofs and the only proof
taken by such magistrate. EMMA a. BURDELL.
CRY AID cosstg Neo f@:k s,-t,mno 4 srliel beins
of her knowledge except the therein
ststed information aud belief and as to those matters
s~on bei5 .af 81. the I'd day t. ISL
JOIN II. WHITMoRE. Com. Of Deeds.
C4on.,y rhepr dad m or1uc n ntiop;
behalf Of admitting Mrs. Cunningham to bail The
following ore his points:
Fb', The wit ohabesa corpus bring, p ta,ee all the
The Justice t,gTH9 il the validity Of the coiamme,t the
!sSpy IN h s . e r. s b s section" " and 3d.
Second ! The amendment Of section 90 provided by the law,
Gm c b p had beer bPd That 20 i IN e, rec
bc Police Act Of ls and as with that oct g. Nor did it
dc6n is not lcc4 or confined to the Cyof New York;
Third often to admit to bail can be made unfit can
eaen.e being brought before lin. OR 5 SOS, sce 81 ab
FOptth Ii is TIE duty the officer admit to b. unes'
Iesions ca to S oonay To rcfse in ss.
The Justice acts udicisIly and rot mni.tsssy Hi. dis.
S ~ sr be sEs s S
ldd The appearance Of The prisoner be rendered sure and es
F III, crcam.faurcs of this css as shown By the pre-.
pnny afJays create h gal doubt OF which the prisoners
Sir. To constitute the alleged oaense i; i. that
there should be proof sufficient TO justify commitment.
That she falsely pretended be born Of parents whose
That there nten, her part thereby to nsercep
inheritance. e Revised Stat SOL s5l)
SercBM: The preliminary adayits do not show fraudulent
production within the meaning of the statute:
There was no overt act s s pd0of TOR tue
nat the child Bds Dc sid"i: Of De La MGat.sGs
To constitute fraudulent production there aust be such
The idle declarations of spaI,y that certain child the
child some millionaire cannot of themselves subject such
II tie sccused tsd insde any legal claim Buiers estate
ssdansbp theT fraudulent production might be c!amod.
The declarations OF accused made IN her oT house md
Nihns was accomplished By those declarations. They were
to sG nHe hS SS
PIT By ho'S Pa for the sSps pp0e o. SI ISc
sccond ground Of ccnscthe sies false ptsc Inst toe
child bonn Of parents who's child "ou.a be emitted :"
l. To convict for fs. prceres the absoa: tasty Of the
are always strictly construed Here does not appear That ;he
child In question born of parents through whom would IN
n mot enough icc TO sag that Sc accused cloiTe 70 he
OF Burde The should Lave syeT'ea To fact
eiisncs on Spd the t'i pant Of the e phid ' ~
? The get tie false ptense clearly consist. III the P9lt
whether The child would inherit The allegation that Ao etd
was BuTdePs chnd"-that it was heI ohid'-nsht well
true yet ofonse be committed unies, the Par;e,
were married Strict proof Of the marriage must Therefore be
ave. by the and they succeed upon the
mere cation that the accused claimed TO be 'ee widow a.
EuIdeL Such pye proof here required s. would DC 1poI
indictment for bgsmy.
Ninth: The accused cannot upon these pIcof' De teld
guilty of intent to intercept tho luhe-tarce SIRE
be deprived Of the locus peni,ens which tho law az
fds Her acts had not proceeded 10 sah exten; 10 iiop
the intent IL shy eIistt
Tenh Under these circumstances l. obvious tta no object
exist tor any stcmp the part ot the prisoner 20 escape
from ts Her situation and her interests combine to the
contrary
Size should Therefore he admitted to bal In just and reason
able. but not excc-tive amount
M Hal commenced his reply to the positions taken
hy NJ StlfGrd. but lid nIocrc ded no further tnhn