The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1857-07-18

sxns would sssn nc 80 much designed % rsvos: the
uaowNsos q 70 explain H. and dsch order that the
VIA shAl ncs be deeued 70 have ocrtsan cue" essy
supposed 70 follow ~ lesN oon,equso s., ron u
Nad n NOT usually 70 be determined by occiA rtons
IL WIS urged on the argumen. soo moi denied,
Court Gov p' when !, a,oSsd he witt, refused 70 i
low Z stay of proceedings In addition 70 II. That
:" Ill IL ems IL peos.sriy operated Of Itself as ss
The mere saying that q writ Of cer,iorari habeas
corpus, other process, shall not perform the fun,
assigned In by lag, that OF these wr,s
shall have Che effect Of the other Ia particular case,
cannot make suoh witt operate, as Ia declared 70,
differently from Its legal province The chief, and
perhaps the only direo, effect OF this writ is to
move the proceeding from before the officer TO shom
II is issued to the Supreme Court Can an order
the eject that Notwithstanding Il is owed fro before
hum 10 the supreme Court, still rema,ns and shall be
oeened % remain, before the officer from whom 1t Is
tAksn, have that effect and make ubquiou, TO that ex
tentf The case OF Patchin aga'nss the Mayor OF
Brooklyn, In some o, It's cht1 ditd sud head
these vews, I aware; but think that no hing
decided in that does conf materially with tnem
me issi effects Of the writ 70 this pro ceiling the
Ter, would he excellent ground for an Argument
20 Tie Legislature 70 show the necessity OF 'aifi-
cation Of the law, perhaps, and could perhaps nave
been properly addressed TO the Court in opposition
10 the allowaD Of this writ In the fret instance,
and II may be OF service on the motion IT, quash IT, IL
such a motion should ever be made, but it can have
but little weilb with in determining what are the
legal con ,equeuces OF when allowed force
Thai the court the situation of the proceed
ing at the time Of the allowance Of the writ and would not
have allowed IL IT had correctly understood II, may also
be good argument motion to the quash
Il, but cannot know the fact and II could, such nfor
nation would not properly be the basis of action OF
am TO obey II ss it rs, 80 long continues to stand
not to indulge in specuatons TO what it might
wouo have been under other circumstances. Ny
have been or what was the intent Of the Court Al the time
except ss II is expressed b, the feet OF allowing The
Tact that the Court refused 70 grant stay of pro
ceedngs asked IN connection With it, anc the fat
that the same Court which the al owance has
since made the order above referred to, seems TO show
beyond all doubt, ana by oouble pros, that il was
not the intention OF the Court that anything having
the effect OF q stay should receive ,s sanction, and
this fact berg established would probably control on an
application 10 that Court In which alone the impeachment
complained Of can be removed was urged also, that
the signing and delivery of these warrants were judicial
acts and that therefore they not restrained by the
Cerora But my Judgment bias not only been announced
orally hut reduced writing in the form Of an order and
egptd by me and delivered to the applicant have hsre
decided that the applicant should have the warrants
Is possible that the srpg OF hese and signing
were hey 80 far, aate acts distinct FIR ,m the
previous ceeepgs at the trial. that the principle which
authorizes The completion of rial because II Is begun,
(as In the where the veni's had been swarded,)
would no, apply here to utfy me In proceeding Bn
seems to ms that II certainly is nos judicial, b Il
ministerial and that therefore, am beun to refrain
Finally, mode Of escape from the restraining in
fuence OF this writ while remains in force and the only
escape the ap ocaI seems be through the Court
granting 1t, and to that Court must commend him My
hands certainly bound think, and hope OF
disenthramen save by the removal Of the bonds by the
strained 20 suspend proceedings anc decline for the
present TO issue the rants
The question, application to Mr. Field, adjourned
Hn Saturday at IL NJ, before which time Mr. Field ex,
peoted the ceruorr would be quashed
Motion 20 Supersede The Writ OF Certiorsri.
Before Hon. Judge Davies.
July l7-7he People in he relation Of Charles Devln
Chas Peabody, one Of tie justices Of tbs Cout-lmme
distely after the rendition of the foregoing decs
gumept on the certorari WAS resumed.
The following are Mr. Fields points
the writ Of certiorar would lie at all In this
would enable the Court only to look into the question of
Jurisdiction. No other could be inquired upon
the return. Unless therefore, the papsrs which the
oerorMi was granted show an apparent want II Jursdc
oon the writ should MT be granted. q Hill g 23 Wend
The p.pers do In fac, show complete jurisdiction The
statute e Us, 81 bo) has been strictly pursued
The writ Of certiorar Is not writ OF right, but Of
grace Its allowance rests in The sound discretion Of the
covntery all the policy Of the Law; when would pro
duce delay inoouvepisni to the public, ~hen there
any other adequate remedy b wend 1888 Hill sss, 81
There another adequate remedy, thst Is by contest
Ing the Jurisdiction when the validity Of the warrants is
NS Johns se-Hgelow sgt Aearns-l Hill $50 Bloom Agt
g. certorar ieued in this Gaze before the completion
OF every thing 70 be 1ppe by Mr. Justice Peabody would be
OF The greatest pcpnconvepeace Il has been adjudged
by the order maA6y him that Mr. Conover Is In posses
eop Of The Office Of Street Commissioner He has had the
franchise Dc oo since the 18th Of June There be
tuo perpons in pspesson OF the cce q, the same time
Mr.. Devlir cannot act apd If Mr. Oonover TO be pre-
vented from acting the pu oc cannot be served and that
department a. ae city government Is praysed Whereas
Mr. Copover s allowed have the benefit OF the order
made by Mr. Justice Pea body the Office will be executed
and Mr. Devhn's lights ~ he has any, be asserted by
QUO po7ronto without detrment 10 the public
Much yc; remains to be done by Mr. stice Peabody
before the pleton Of the matter before him He
"by warrant commit pevn TO jail, I'LL the delivery OF
the book and pspers he Is 10 "ssue his warrant" Of
eesrc and upon the bringing Of the books and papers be
fore him. he Is 70 inquire and examine whether the same
appersned to the once" and 'csuse the be de-
livered 20 the pAiDanL" II the certiorN says the
completion OF hese things stops thea forever for they
the S eora re arncd ds Pr sss~snd he 80
preme ocur oannoi issue the warrants or conduct the
further lrqury
For the reasons stated in he last point the right 3,
tere tae oerorsr til the Fiction OF The Il
10 be eeemed taken ssy by lie statute allowing this
that the custody official BOOK aad papers ght De with
held from the Successor 10 40 Clce, I'LL ceruoru should
be dspoacd or The proceedings are Intended - be most
summary, and liable to b stayed by am other order
or proct etng They do not decide the right but only
who IL 10 have the books I'll the right tried 10 suop,se
that the LeRslaiure intended a. ave these summary pro
ceedinRs liable &c be suspended b ceTorar ~ suppose
tina, they intended TO inst ute useless ceremony (2o
johnson ~; LyDde Va Noble
n tie oertorsri be not stay ofp-ccecdngs Il is be
cause u was premslurey lssued II rigboly issued Ia
proper case aud AT proper tine removes the recorf
and thu, stays the proceeding because leaves nothing
before ths officer on which be rrOCecd II beo, n be
beld not he a stay Il shoud be super seded a. prens
tarely ard mprovideny 'ssurd. II :; be held 4 he
stay should Dc Eupere.ed, tending v nterf ero nth
the jncical administration Of summary PROCEEDING 10
tbwart jusuoc and oOuBiervsil tbe legislative VII
hsiever may DC held TO D. the Jasoi 1i the er "a
20 stay, u having been tire iorsy ended B. tho
plaintiff that the writ dos sta al procee irrs, notSta
ptanoine toe qualification sough be eril1 W she
q the Curt, and treai enhancement g. been pro
duoed by the doubts thence arising, and tn ies being
threatened with actions II ueHpa', The C.r. vl relieve
the Gaze o. all embGras nent ~ perselng the writ
as wcbd tt5, ell
10 This may he done i'm media 1ly az wend. gu)
Mr. reld contepded that the elect of toe ~rt is 10
enable the Court above decide u Of jlr,dc
ton alone Wrts OF CertOrar sl.Dt be gra0ted With
great care and dscrete1 AMI az tue paptr 10 this
could po he read 10 css than hour whereas the
sci no procured the vrt not s0ton from tue
than I've r1lnates yldoot great care
dscreuon exercfCt ia granting IT, Judge Peabody
decided tbet Nr Conoyef bad possession ) tie Office OF
Street Comm sioner siuoe June Is Now Dsvln hofs the
books and papers, and as two l1ot be incum
benu Of the Office, the duties he performed
unless Oonover In alio Tei TO act
Judge Ia res-There s no doubt nai q there
nnA decision the writ ought not 70 issue, and You congne
yourself 70 satisfying my mind that final decision
had, n viii greatly facilitate uatlcr7.