New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-07-14


S,1r No iniunfion should be grated because
70 rjui eli, il rccdcd opd because its operation. II
isucf would conflict with tie orderly como ict o. an,
oil preceding, lawfully ard previously co hmeocea
ufdcr special statute b. fore another Jcd5e ta'-
hMgh acting 10 q different capacity oil Tue same
grade aud Of tie same Court
crrcph Tie regular and sufficient process Tor re-
viewing the pss-essory question, and oil STAY hg pro
tioreI rc,ufnable 90 aad heard before the General
Term Of the Court instead Of singe Judge, whether
sitiog a, Chambers or Special Term.
WITH these ews, the temporary restriction oeccs'
sariy ceases aud The order 10 show cause must be ol
charged.
Before Judge PEABODY.
Judge Roosevelt having concluded, Judge Peabody
proceeded 10 render his decision the preliminary
question as 10 the effect Of the cytorori in staying
proceedings in the matter Of the application Of Mr.
Conover TO compel Dir. Devlin to deliver to him the
hooks AID papers of the Stree. Commits icners Office
JUDGE Peabody said:
Gentlemen, in reference 70 the application for tho
warrants pursuant TO the order made by NE few
DAYS ago, the issue OF those warrants was opposed On
Sc veral grourds-two of which / thought worthy OF
consideration beyond what would be given to
them in the hearing at the time The first one, and
the one to which / have given my consideration
chiefly, was the operation Of this injunction. had
prepared myself 20 pass upon that question Thai,
however becomes under the state of things which
have Just Witnessed entirely unimportant. There is
no lcrger any Injunction in the way The second
question have examined but little; for seemed to
me so very clear and so very certain that common
law ccrtorari, Issued Immediately upon my pro-
nouucipg Judgment in the matter before me,
ard putting that judgment into form with my
si.nsture to the order, cid stay inevitably all proceed
iugs before me, though l have not gone very fully
;nfo mn examination Of the subject entertain scarcely
doubt on the argument of the effect Of the ccriiorar
and the little efe con have gvent slrce has tended
10 strengthen ns ad of mpairing my entire conviction
that il operates inevitably asa stay Imy proceedings:
So far rs the ccr0ri is concerned II the ceH'0r0'!
il row in existence have no doubt that am stayed
by il mperativelyhat any steps taken in fu therance
of this matter by me- while this is in operation, would
be absolutely null ard void. As at present advised,
therefore, and assuming the eercrGri to be- as Pnr
ports 70 be- so far as specially informed in full
force must decline at present to sign the warrants
Mr. Field suppose, Sir. you are not aware of the
order made by Mr. Justice Davies on Saturday. After
the adjournment made by you on Friday, in conse-
was made 10 Justice Davies for order to show cause
before him the next morning why the certoraTi should
not be granted The next morning the motion was
made and he then expressed ms surprise that any
doubts Hioud have been entertained upon the subject
He stated that he refused an accompanying appliea-
ticn for a stay of proceedings, although supposed,
and il was stated here, and so Understood II, that
that application had not been made, and oil course had
not been refused. However, the counsel seems t.
have supposed there was misunderstanding upon
that subject He said that application for cay
was made and refused then sisted to Judge
Davies the embarrassment which had been cansed
here by that action in the matter before you, ana
hereupon he issued the order stating that the cro.
rori should not be deemed taken as stay of the
proceedings suppose, Sir, that that does away with
tie difficulty if there other means OF doing H.
Judge Peabody said the writ OF certGrarI was issued
by the people Of the State of New-fork from the Su-
pieme Court, commanding him to return his proceed
ings 70 that at certain time. The writ had certain
cefn:te powers and functions, while it stood in force.
and lie would like to know who on sarth or what
power could modify the effect to be produced by such
a writ.
Mr. Fe'd-I en- prepared to argue that question.
Mr.. Brady-SO are We. ~
Mr. Field-Of course this was all surrepttlously oo'
tanned from the Judge.
Mr.. Busted twarmly)-No, Sir; the allegation that
it was surreptously obtained is absolutely and
wholly without foundation and without truth What
Jue@e PeSbodrUThere is no trial before me on that
subject.
Sir. Busteed--When counsel as respectable az MIR.
Field makes statement to you in open court, that an
order in court was sureptitiOu-ly obtained, when
was the instrument for obtaining it, justice to myself
requires me To deny 1t promptly. go
Mr.. Fie!d-The facts are undisputed. He got the
writ for the purpose of staying the proceedings, ana
represented to the Judge TINT he wanted it for another
end. There is no question OF the facts-it Is matter
Of taste merely as to what you sha call IT.
Mr.. Busteed-YOur saying so dor I make 1t So
Mr. Field then oontended that the writ was not a
STAY, and did not pretend to be. Even without the
order it was a mere Jrufem fn'men. 1t was funda-
mental principle, that until the power of Court is
exhausted by final determination writ OF eefaora'r
cannot issue.
Mr.. Brady suggested that that point had been
argued and Just decided. The only point on which he
understood the Couit to invite argument now was,
who il is that has power to modify the efie9 OF the
wit.
Mr.. Field proposed to show that the Court had not
finally determined the natter that until the warrants
were signed the proceeding was pending. The sigma.
ture of the warrant to commit Devlh 10 JAN was not
the last act even; the books and papers were TO be
brought before Judge Peabody, and then he was to
make another order delivering then to Conoyer. Inc
common law ccroror could not issue untu that order
was given.
functions in the matter had ceased that by necessary
Implication the certiorari was not applicable to the
poce irgs because ii would defeat the summary APP
tplcation intended by the statute.
Mr.. Field proceeded to argue the points made by
him ON the notice to auash the Indictment which we
printed on Saturday. He urged further that the order
That the cc,fiorar was not say-was Judicial pro-
ceedDg Of the Supreme Court, binding upon all men,
including Judge Peabody sitting asa commissioner
JUDGE until it was reversed by the same or higher
tribnphl c 49,.
1.-THE record has been taken into the Supreme Court
by c,f,orGri the statute becomes nudity; the pro-
ceedpgs being there, Judge Peabody mas no i1rlneI
mower 10 issue the warrant, and the Supreme Court
Itself has nc authority That is the legal reason why
a c7tiorari will not lie in any such case as this.
Judge Davies's decision was supported by previous
authority. Mr. Field read from the case of Patchin
agt the Mayor of Brooklyn Il3 Wend, 600;
If the record should 60 up on the writ the Supreme
Court could not under any circumstances, issue the
warrants nor could they return them to this Court to
be ssued ard the effect would be that the statute OF
the State would be nullfed by single Justice III
conclusion, he summed up his argument thus
l. Aoerfiorari would not lie in this case In any
stage-neiher while the proceeding is pending nor az
the close Of the proceedings; because the act clearly
cohtt mplaie that the remedies are summary asa sman
not be tcrered with stayed and any interference
n, dor tho writ womb he violation Of the act.