New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1857-09-09
MRS. CUNNINGHAM TO BIZ BAliED.
DECISION OF JUDGE PEABODY.

The decision of Judge Peabody of the Supreme
Court. on the application of Mrs. Cunningham on a
writ Of habeas corpus to be admitted to bail, was an
nourc ed to be given at clock yesterday, in Spec. a
Term AT that heur small attendance of persons,
attracted by morbid curiosity, appeared in the Chamber
of The Supreme Court Circuit, where tue decision was
to be rendered. Soon after Mrs. Cunningham entered
in custody of the Clerk of the Warden of the City
Prison aud was soon Joined by her counsel, Mcssrs
Wm L. Stafford and Matthew Hale Smith. Mr. JUS
tice Peabody and A. Oakley Hal, DstI;ct-Auorney,
soon entered The rooIn
Judge Peabody then inquired if the parties were all
present. Mr.. Hall raid that he believed they were.
Judge Peabody then delivered the following decision
f. r. ETm. \. Burdell on iisbeas Corpus.
The prisoner is before me on wrt OF ns5ea' cor
pus addrtssed to John Gray Warden of the City
Prison, asking 10 be admitted TO bail. The return to
the wit shows that she detained III prison by viz
tue of commitment by Police justice, on tho
charge of having feloniousy and rauduiontly pro-
" duced infant falsely pretending 1t to have been
born Of parents whose child would have been en-
titled TO share of the personal estate, and to n-
heyit the real estate Cf Harvey Burdel, dcceased,
" with the intent of interceptirg the inheritance OF
such real estate or the distribution of such personal
property from the persons lawfully entitled thereto
Annexed TO said return is n statutory writ OF GER
orari which is written discharge OF the wt by
Judge DAILY Ok the Court of Common Pleas. That
writ 10 addressed to the Clerk of the Court of General
Sessions, commanding him 10 certify to Judge DAILY
" the day and cause Of the imprisonment OF Emma a.
BuIdel. and the preliminary athdavlts &c, OF Will
"liau \ Dawson one OF the Police justices" &c.
Annexed TO this writ is the return OF the Clerk to
whom it is addressed, in substance tina. he had no
persOra or Official knowledge OF the day and cause OF
mprisor nent of the said Emma 4. Burdel but that
he re'ulrs certain sidays agsinst her Oh charge Of
felony which have been certified TO the Court oil
General Sessions by the magis rate taking the same
The sfdavits referred 10 in the return are not an
neIe6 and do not appear before me- There IL also
annexed TO the wit OF habeas corpus, a. II part OF
the return 70 t. an extract from the minutes OF the
Clerk Of the Court of General Sessions, stating that
molten was made in that Court 10 admit the prisoner
20 bal on The 18th day Of August, 1871, which WAS
denied.
These rrit.-the writ of certoraTi and the return,
and discharge indor sed and the extract from the
minutes Of the Court Of Sessons-are annexed 10 ana
seem to TOM r part of the return Of the Warden Of
the City Prison TO the writ oi habe& corpus on whlcn
the prisoner is brought before nae.
The prisoner answers to the return by interposing
rsver.e and claims that -he is Illegally detained and,
10 chow ais she ets forth copy Of the proofs before
the magistrate; so that the case presented TO MN
before me. =, =,
A motion is made on behalf OF the people that tue
babess colpus be discharged the ground that tns
question OF bail is res adjudicate:
First: That the magistrate before whom the e1ani'
nation was mad refused ~ admit % bail
S,c0nd: That the same question was decided al
versely 10 tie applicant by Judge Dsy on the writ Of
csrtioial
TEUl. That motion has been made in the Court
Of Ses-ou. TOR thu same purpose which aas also been
oenied.
a. 10 the proc.e ding, before Judge DAY, there le
no.hBg bt re 10 show that the question Of admit
ting bail Ia-sed upon, discussed, or raised
there even assuming al the papers before me az
part of .e return OF the Warden OF the Prison TO be
ircpery herr proving their own genu!nene,s and IS
abIshDg al the tacts stated IN them. Inc ptpers re-
II ned 10 Judge Daily that wit 90 not appear be-
fore me roris there contained in bis discharge any in
tim.tion what Wa. done before him. The more ap-
plopriate Office Of tie writ Of celordr IN such caas
il to revise the proceedings before the magis.
Yatc AID see whether any e1or in Law was
committed BY him, and particularly whether he had
re.ored 20 oOne for rhe purpose OF moving 70
.dpit to bail and believe is not even tae appro'
paie writ tor that purpose except when isaued with
and in eid Of tie writ Of habeas corpuswhich it was
not in that case cannot therefore, infer from the
fac. that a writ OF ccr'joTari was issued and utter
ward discharged by hm-whch IL leaily all that
have ANY evidence doae-thst the question OF
bal WA raised ,nd decided on that occasion Inucn
k.e assume that, either before him or mo Coo'
&C Sessions tie question ot admitting to ba was Pr
selted ard decided the same state OF iacIS o. ~"
presented before me. A.. u.-v
Estoppes are rot favored in law, ara me t0 80
seekrg 10 avail klusef Of one NUT eel Iosa ~ ~;
fact nesria, 10 establita 4. On tbe pau VI ~;
oner il was denied most positively tae e.. -
learned Judges did eXe1ne and pasd 81 "a, 80.
ton esd certa.By TIE fapers before no s.,i
/ of se,hss forth lbe fsots !, pAanet ,.,s.v a.,
a5t tst. ..e ., as.1oS,ss ule - t1' -