The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-24

the cases entoneo specified In the statute whereby
fulb discharged oy your Honor sispg AND hear
ing . petition on Q habeAs pus, where the IN
and we ,hbk and win !. main ain. ths, Dsgin Is
cnua 10 he dscha ged under every az III te heals
shai copone the d,'cas-ion chiefly, however u en-
Crey " the nr-i third fourth and xth sub divisions OF
that section having out the second an omitrg me nn
which eeAry has application to he case, oecsase
concerns only the custody OF the prisoner bn' WIN these
two exceptions which are technical in their lre
think ~e can invoke the whole Of that session AMI we
sSss. & has been and u
Devhn i'm orisoued In defiance OF these PROVISIONS Under
The tnmsion which has fallen from your honor as TO the
principal que which wish TO srguet
upsa which your Judgment Will be given, wiii
mot 20 fully rs I intended to do into the dis
cussiop OF some points which are upon my brief
which / observe your honor taxes for granted,
understand Honor TO that the chief questions
be considered are LIST. whether the b NAL under whose
warrant the tmpr opment directed had jurisdiction
IN the and to issue that warrant aud "a whether
the srrant shows acauee OF Imprisonment Under these
two heads shall do but little IN ad the th
fret points which make for regard then az already
settled by your Hsuors init mst atom
LIST Is not only the right but the duty Of the Judge
inquire IN this eeding whether Mr. Justice Peapoty
bad jursdc'on TO issue the warrant ach Dsvn
held in custody for he had such Jurisdiction then
The waras Mt sttery vsd and the imprsop ment
lawful s' Bill, 100; DEMO, lis; III Hill, l6i; 4in
% Jurisdiction In Justice Peabody IL no, to be pre-
stunned that presumption oaly exists In relation 70 Supe
ror Courts, md not 70 inferior jursd ton 6roceei
ing according TO the course OF common law bloom "
That proposition suppose will not be questioned The
proposition ise is that they must show Automatically thai
Justice Peabody bad jurisdiction In this upon
the proceedngr-ro make the judgment order which he
made and In the that he issued In refe
preeum, d. but he tina, Mr. stice Pc .b,dv
although Judge Of the Supreme Court, sitting
. court but az commissioner. acting as any county
Sudge gh have acted and without attributes
OF any court much less Of Judge Of the Supreme Court
whose 10 be presumed Your
honor ismi with May the statutes where
tg-Q
tory officers 10 hold certain proceedings Your honor
sitting here on hsbess corpus instance OF that
Justice sitting under the landlord and tenant
TO try dispossession case is another instance These
show the distinction which make between Mr. Justice
tie powers OF that court. and Mr. Justice Peabody or
ocio sitting under this special statute this parsusr
proceeding We claim that; sitting In this proceeding he
ture but Inferior tribunal and therefore, under the
cases that his jurisdiction cannot be presumed but
Tor every act thar he did that he had not
the power TO do ere solitary act, mater how
less an act which involved the lo.s of
liberty, Of oce estaie-withou his ex authority
being found In many words In the from which
be derived pis auhority- or small much or little
AZ TO the extent OF that authority could DO and
what he could not do SOL will come to presently In It's
the pro eec ing by Couover against Devlin The
preme Court II aud rs a summary proceeding before
the Ju,tce In which he possesses dignity
power than would have attached TO the county Jldge,
such PROCEEDINGS had bsen commenced before him
Fourth.-But want OF jurisdiction the person OF a
citizen may he alleged end proved to secure his liberty
against court So decree OF the Woe Chancellor
IN Court OF Appeals declared be void because
bill of complaint before him did net show Jurisdiction
(Burkle VS. Eckhnt, Com. afhi ming DEMO, p 279
hafeas corpus act Sc, sub DIV. l. 8, Harrington
nh-rhe decision Of Justice Peabody that he had jur,
csntou Dot conclusive any such rule prevailed. the
OF Jurisdiction In judicial proceedings could
be inquired into any species Of review for by deciding
the magistrates tribunal al ~ays declares tha has
jurisdiction (Benne vs. Bursh, DEMO i4l; Burchard
Sixth In this case II appears distinctly aud post vey on
The face OF Copover's complaint and thu jus
Nee Peabody had no orisd cton because warrant
Hcos by the Justice mover had 10 sho that be the
soooessor Of Joseph Taylor 10 the once Of Street Com
missioner
l. He thu, he not such SUCCESSOR because
claims escpsvey under appointment by the Governor,
who had no power TO make any such a2 ointment
~ e snow' snH S.a , ne were sea ana 10 law rec
appurtspances he states this In bis paut sho
no under the statute but trespass, which
mot be redressed IN this way.
8. He shows that books &c, to the possession
or Devin during vacancy in the Office
Mr. Feld-rhen, As understand the argument here. II
that the Governor could not appoint and therefore the
appoD smeot by the Governor did not allow any
become de Jaco Street Com missioner under him
Mr.. O'Conor-Yes We will es aoish that by authority
Mr.. ackee-The petition OF Mr.. Conover In the nrst In
stance, alleges that the Governor appointed him Street
Commssisne That IL the only kind Of title TO ~bich il
refers. Now, In order wha. sort OF they had
rehi 10 bring before the court Mr.. Justice Peabody
holding, IL IL pece 10 look TO the statute,
zee what powers be had with at the
acudosons Of the Supreme Cou with references those
powers IL found In the Let Revised atues page 335,
9Th Cd art g. The statute may be considered
genera heads The rst half dozen sessions relate
Gaze Of person who than be removed or the for
which he may bsve been elected appointed shal
pire, requiring him In such TO deliver 10 b..
sucoessor all The property AID boois spperisinag the
Office In his custody-a provision not relating ,hs
for here the term for shch Mr. TAYLOR elected
not EXPIRED had the term for which any per
appointed bis successor expired The second branch or
M
q person appointed elected ~ nc Off 70 shall
die, or his Office shan In any way become vacant,
and the booss or papers sp,ertaning to sucn
ofce Oh AL the hands Of another parry the sue
10 such ofce demand such books papers
from the porton having them In ss possession This
tion aims al tn lac under which Judge Peabody
cd Nov tho broad, general question L. VII, ther
Tecy ul the The ule ONCE 10 tbs fret osce; SO
cond 20 settle BIO should Jake posn SSH Of tue OH
and thirdly whether under that secior the books aud
yapert 81 office could be taken from he custody aud
poesesthD Of person appointed 70 The ONCE and IA faa
exercising and dkcbarfiDg iu fanc IONS
Euct bJ the community IN which he resided and acted
They have done all three OF things by their proceed
In r. before NJ justice PEABODY shall They
lave practically ,eul the qutsoo as TO the title b. the
Once, though all the time disclAming auy int
do that IN many ~ords. They have tried settled
The eviction A. 10 The possession Of the Office, which
quite mpor ant a. the tile. and according 10 Mr. Justice
Ptabooy, even 90 shall sb by hts opt 100:
and theY have sexes and taken into their coutrol the
books and PAPER, Of the once from person uly dts
charging The duties of Tie once hodnr regular .ppop,
mem 70 q, aad reoogpxed the officer loco oy the
entire Corporaon In whose name and on whose behalf,
and whose agent be Ia app. inted W net Nov, the
broad question L. whether thai Of the saiue-(be
there must look )-conferred Jon Mr. justice
Peabody, slnipe under IT, any N poser any vesge
az II been repeatedly decided In Krisiag
opy under this statute, but upon mzbdamus and
modes. thai there s but one ~fu mode-but OF N ode
know " the sv-by which q party 10 OH se de laclo.
with color OF tile, holding possession snd claiming pos
sou under H. and exercising the duties. be oa'led add
that is by quo bas 10 any adj Idicsed
been claimed, much less decided that tnls sect Of
The statute or snv part Of this statute eau be applied ~
eu,h q this conceded 10 upon the papers Let
usrcur 10 Mr. como er's petition aud the Issue tau
be himself prcsoned 10 The very nnst iasta9ce, u the
Court
The petition q Daniel Oonover OF said city, respect
fully sho 80 that Joseph rsyor elected - the on
OF street. q mis- Toner o. he city o. Nes Yok 10 Nsven
ber 1855, and upon the duties OF said ofce 10
January Thereafter, and connuei therein until June o.
1897, when he DIED that Oeto the 2t1
day 1851, du appointed and CO rns toned oy the
Governor Of The sse Of New Yos 70 al The vscaosy thai